Krishna Roy vs The State of West Bengal

Joymalya Bagchi, J.—The appeal is directed against the judgment and order dated 23.09.2011 passed by the learned Additional Sessions Judge, Fast Track, 4th Court, Alipore, South 24 Parganas in Sessions Trial No. 08(04) 09, inter alia, convicting the appellants for commission of offence punishable u/s 395/397/120B of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for seven years each and to pay a fine of Rs. 3,000/- each, in default to suffer rigorous imprisonment for six months more for the offence punishable under Sections 395/120B of the Indian Penal Code.

The prosecution case, as alleged, against the appellants is that one Sachindra Kumar Roy, son of Late Sasikanta Roy of Flat No. 3A, 3rd Floor, at premises No. 274, Rashbehari Avenue, made a statement to the Investigating agency that on 30.09.2008 at about 12:30 hours one unknown person rang up on his mobile phone and wanted to meet with him regarding changing his mobile handset. As he agreed three persons entered into his flat by ringing his door bell. They showed some catalogues of various mobile handsets but he was not agreeable to buy any of them. Thereafter, one of three persons called another person over his mobile phone. Then, another person entered his room with different mobile handsets. The person who came last took a bed sheet from his bedroom and tied him to the sofa and gagged his mouth by piece of cloth. He was also assaulted by that person with the handle of his firearm over his head and left index finger and sustained blood injury. Thereafter the miscreants tied up his sister Santa Roy (PW-4) by white cloth with the chair. The miscreants ransacked the almirah and drawers of the complainant and took away cash money, gold and diamond ornaments and also some other valuable goods. Soon after the departure of the miscreants somehow he released himself and also managed to unfasten his sister. Santa Roy stated that the miscreants had snatched her golden bangle. Thereafter, they found cash money of Rs. 25,000/- to Rs. 30,000/-,15 US Dollars, 20 U.K. Pounds, one set of golden necklace with blue stone, gold ear rings, finger rings, diamond fitted finger rings, one piece Gini and two Nokia mobile sets which were stolen. He was taken to Calcutta National Medical College and Hospital for treatment. On his written complaint, First Information Report was registered being Gariahat Police Station Case No. 190 of 2008 dated 30.09.2008 under Sections 394/397 of the Indian Penal Code and Sections 25(1B)(a)/27 of the Arms Act.

In conclusion of investigation, the appellants and one Rajesh Mondal, Sipra Karmakar and Sk. Jabbar were arrested. They were identified in Test Identification Parade. Stolen articles were recovered pursuant to the discovery statements made by the accused persons and in conclusion of investigation, charge-sheet was submitted under Sections 394/397/120B of the Indian Penal Code against the appellants and other accused persons and u/s 25(1B)(a) of the Arms Act against appellant Dipak Mondal.

The case, being a sessions triable one, was committed to the Court of Sessions, Alipore, South 24 Parganas and transferred to the Court of Additional Sessions Judge, Fast Track, 4th Court, Alipore, South 24 Parganas for trial and disposal. Charge was framed under Sections 394/397/120B of the Indian Penal Code against the appellant and other accused persons and u/s 25(1B)(a) of the Arms Act against appellant Dipak Mondal. The appellants pleaded ''not guilty'' and claimed to be tried. In course of trial, prosecution examined as many as twenty four witnesses and exhibited a number of documents. The defence of the appellants was one of innocence and false implication. They, however, did not examine any witness in their defence.

In conclusion of trial, the Trial Judge convicted the appellants and other accused persons for commission of offence punishable under Sections 395/120B of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for seven years each and to fine of Rs. 3,000/- each, in default, to suffer rigorous imprisonment for six months more for the offence punishable under Sections 395/120B of the Indian Penal Code. By the selfsame judgment, the learned Judge acquitted them of the charges u/s 397 of the Indian Penal Code and the appellant Dipak Mondal u/s 25(1B)(a) of the Arms Act.

The appellants, namely, Dipak Mondal, Prasenjit Chowdhury and Krishna Roy have challenged their conviction and sentence in the present appeals. No appeal has been preferred by the other accused persons. As the appeals are directed against common judgment and order, the same has been heard and disposed of analogously by a common judgment and order.

Mr. Ganguly, learned counsel appearing for the appellant Krishna Roy submitted that as per the prosecution case Krishna Roy had not entered the house of PW-3 and had not committed dacoity. PW-5 claimed that he was standing in front of the house. It has come out from prosecution evidence that Krishna Roy was known to P.Ws. 3 and 4 as he had visited their earlier as salesmen. His Test Identification Parade and subsequent identification in Court was therefore valueless. He further submitted that the recovery of the stolen articles have not been proved and cannot be connected with the alleged dacoity as the articles have not been identified by the owners during investigation.

Ms. Sinha, learned counsel appearing as amicus curiae in Criminal Appeal No. 616 of 2011 filed by Dipak Mondal submitted that the identification of Dipak Mondal in Test Identification Parade was doubtful. No safeguards were followed in course of Test Identification Parade. She further submitted that the role of the accused persons as narrated by the PW-3 during Test Identification Parade was different from his deposition in Court. She further submitted that seizure of the firearm has not been believed by the trial Judge and the appellant has been acquitted of the charge u/s 25(1B)(a)/27 of the Arms Act. She also submitted that the seized one DVD Player and one Mobile Phone cannot be said to be stolen property as there is no evidence the articles were purchased from the monies stolen from the house. She has relief on Yeshwant and Others Vs. The State of Maharashtra, in support of her submission.

Ms. Chatterjee, learned counsel appearing as amicus curiae in Criminal Appeal No. 625 of 2011 submitted that gold ornaments recovered from Prasenjit Chowdhury were not identified by the owners during investigation. The seizure has been effected from a premises which has not been proved to be owned by appellant Prasenjit Chowdhury. Test Identification Parade of appellant Prasenjit Chowdhury and his identification by PW-3, PW-4 and PW-5 are doubtful. She adopted the submissions of Ms. Sinha in that regard.

Mr. Banerjee, learned Additional Public Prosecutor, High Court, Calcutta appearing for the State submitted that PW-3, PW-4 and PW-5 have identified the appellants both in Test Identification Parade and in Court.

P.W. 10, the learned Magistrate who conducted test identification parade has proved the same in the instant case. The allegations as to lack of safe guards with regard to holding of test identification parade are insignificant and no prejudice can be said to have occurred to the appellants. He further submitted that seizures were pursuant to disclosures made by the appellants and other accused persons and, therefore, reliable. The seized articles have been identified in Court were clearly have been proved to be a booty of the dacoity. He prayed for dismissal of the appeal.

Prosecution has examined 24 witnesses. P.W. 1 is the photograph witness who has photographed at the place of occurrence. P.W. 2 is the plan maker who prepared the sketch maps of the P.O. P.W. 3 is the owner of the premises where dacoity was committed. He has identified the appellants in course of test identification parade held on 5th November, 2008. He has also identified the appellants in course of his deposition in Court. P.W. 4 is a sister of P.W. 3 who resides with him and was also present at the time of dacoity. She has identified the appellants in test identification parade held on 5th November, 2008 and also in Court. P.W. 5 is the care taker of the premises. He has also identified the appellants in the test identification parade as well as in Court. P.Ws 6 and 7 were reported witnesses. P.W. 8 and 9 are witnesses to the seizure of stolen articles including 5 Dollar and 10 Pound notes pursuant to disclosure statement of accused Sipra Mazumder. P.W. 10 is the learned Magistrate who conducted the test identification parade. P.W. 11 is the seizure list witness in respect of seizure of Rs. 2,500/- cash, a country made revolver and gold ring from the appellant Dipak Mondal. P.W. 12 is the seizure list witness in respect of seizure from appellant Jabbar of one gold Bangle, one gold finger ring with engraving S.K.R. P.W. 13 is the doctor who treated P.W. 3. P.W. 14 is a witness of seizure from the appellant Krishna Roy of four gold Buttons with gold chain, 10 Dollar and 10 Pound currency notes and four gold buttons from appellant Prosenjit Chowdhury. P.W. 15 is the scientific officer attached to State Forensic Laboratory who has examined the blood sample on the seized bed sheet and clothes. P.W. 16 is another doctor who examined P.W. 4. P.W. 17 is the arms expert who examined the seized arms and gave report (Exhibit 15) P.W. 18 is A.S.I. of police who has proved the seizure from the appellants. P.W. 19 is the nodal officer of Airtel who proved P.W. 3 is the owner of the mobile phone number 9312003890. P.W. 20 recorded the statement of P.W. 3 which was treated as First Information Report. He proved such statement as Exhibit 2. P.W. 21 is the witness to the seizure of four silver finger rings and one gold finger ring from accused Rajesh. P.W. 22 is the police officer attached to Kasba P.S. who also proved the seizure from the appellant Jabbar. P.W.s 23 and 24 are the investigating officers of the case.

The case of dacoity has been proved through the evidence of P.W. 3, 4 and 5. P.W. 3 has stated in his evidence that he resided at 274, Rashbehari Avenue, Kolkata-19 in the 3rd Floor, Flat No. 3A alongwith his two sisters, namely, Uma Roy and Santa Roy (PW. 4). Uma is of unsound mind. He stated that on the date of incident i.e. on 30.09.2008 he received phone call on his mobile phone No. 98312-03890 from a person who wanted to sell mobile set to him. He asked the said person to come to his residence. Accordingly, three persons entered his flat. He could not chose from the catalogues shown to him. As a result, another person was telephoned and he came to the room. Thereafter three persons entered into the bedroom and one guarded the kitchen where one of his sisters, Uma Roy was eating. One person tied him to a chair with the help of a piece of cloth. When he tried to free himself the said person took out a revolver and assaulted him on his forehead and left hand with the said revolver. He suffered bleeding injuries on his left hand. Thereafter one person brought his sister, Santa Roy to the room and tied her with a chair with the help of cloth. Thereafter two persons opened two almirahs which were in the bedroom and took ornaments, cash etc. from the said almirahs. They also took out a brown colour bag from the almirah. The accused persons left with the following articles :

Two sets of gold buttons--one set was with chain and another set was without chain, a gold ring where SKR was engraved , one gold ring fitted with American Diamond, another gold ring fitted with Ruby, 2/3 pcs of silver rings with stones, an old band of a wrist watch, a neck chain made of gold fitted with a silver locket engraved ''Ma'', one piece Mohar, cash of Rs. 25,000/-, two mobile sets, one gold bala, one ear ring fitted with Diamond, one white metal ring fitted with Diamond, a brown colour bag etc.

After the miscreants left he telephoned his relations who came to his place. He was treated in the National Medical College and Hospital. Police came to the house and recorded his statement. He put his signature on the statement. He proved his signature. He identified the miscreants in Court. He stated that the appellants Krishna Roy and Sipra Karmakar were known to him from before as they came to his house earlier as seller of household articles. He stated that he attended the test of identification parade and identified the accused persons. He identified the stolen articles seized pursuant to the disclosure statement of the appellants and other accused persons in the Court. P.W. 4 has corroborated the evidence of her brother. She identified the appellants and other accused persons in Court. She identified the golden bangle which was stolen from her. She stated that she had attended test identification parade and identified the accused persons. P.W. 5 is the caretaker of the building. He stated that on 30.09.2008 a dacoity took place at the flat of P.W. 3. He stated that on that date a taxi came in front of the building. Five male persons and a female had come down from the taxi. Four male persons proceeded to the building with a file in their hand. They stated him that they were going to the flat of P.W. 3 for selling mobile phone. One male and the female person stood near the taxi and they kept on looking towards the building. After half an hour the said four persons came out from the building with two bags. They boarded the taxi and left the place. He identified four persons who entered into the room as appellants viz. Dipak Mondal, Prasenjit Chowdhury, Sk. Jabbar and Rajesh Mondal. The appellants Krishna Roy and Sipra Karmakar were standing in front of the building. He stated that he identified the accused persons in test identification parade. He stated that the accused persons had come out with two bags, one of red colour and another of green colour. The witness identified the red coloured bag in Court.

From the evidence of the aforesaid witnesses it is clear that the appellants had come in a body and four of them viz. Dipak Mondal, Prasenjit Chowdhury, Sk. Jabbar, and Rajesh Mondal entered the building on the pretext of selling mobile phone to P.W. 3. Three of them viz. Dipak Mondal, Prasenjit Chowdhury and Rajesh Mondal entered into the flat of P.W. 3 first. Thereafter, Sk. Jabbar entered into his flat. Thereafter they tied up P.W. 3 and 4 and committed dacoity in the flat. Appellants Krishna Roy and Sipra Karmakar abetted them by standing outside the building near the taxi and after four miscreants came out from the building all of them left in the taxi.

It has been argued that the prosecution case cannot be believed as no investigation has been made with regard to the taxi or the identity of the taxi driver.

I am unable to accept such contention. It is the consistent prosecution version that the appellants and other accused persons had come in a body and four of them had entered into the building. Two of them were standing in front of the building. In the face of such consistent of dacoity, the prosecution case cannot be disbelieved on the ground that the taxi was used for the purpose of dacoity or its driver was not identified. Utilisation of a taxi for dacoity is not uncommon in view of easy availability of hired vehicles in the city. It may or may not be true that the driver of the said taxi was an accomplice but failure to identify him does not wash away the complicity of the appellants in the crime.

It transpires from prosecution evidence that P.Ws. 3, 4 and 5 identified the appellants and the other miscreants in Court as well as in the course of test identification parade. It appears from the evidence of P.W. 10, learned Judicial Magistrate, 2nd Court, Alipore who conducted test identification parade, that on 05.11.2008 test identification parade was held where P.W. 3 identified the appellants Dipak, Prasenjit and Sipra. P.Ws. 4 and 5 identified all the miscreants including the appellants during T.I. Parade. The said witnesses have identified the appellants in Court. The appellants and other accused persons were arrested on 12.10.2008 and 13.10.2008. Test Identification Parade was held shortly thereafter on 05.11.2008. There is no inordinate delay in holding the test identification parade. It has been strenuously argued that adequate safeguards had not been taken in the course of test identification parade. It has been argued that the Test Identification Parade was held without ensuring that the witnesses were kept in a different place. It has also been argued that no precaution was taken not to mix up the accused persons with other persons of same stature and height. Right hand of appellant Prasenjit was amputated. No safeguard was taken in that regard during Test Identification Parade. I find from the evidence on record that at the time of Test Identification Parade, persons mixed with the accused persons kept their hands behind their backs. As a result, it cannot be said that the appellant Prasenjit could have been identified due to amputation of his right hand. I also find from cross-examination of P.W. 10 that the witnesses had been kept in a different place during Test Identification Parade. There is nothing to suggest the place where the test identification parade was held was visible from the place of the witnesses were segregated. Merely because such fact has not been noted in the Test Identification Parade report no inference can be drawn that adequate safeguard to ensure sanctity of test identification parade was not resorted to. Reliance has been placed on Wakil Singh and Others Vs. State of Bihar, and Yeshwant and Others Vs. The State of Maharashtra, on behalf of the defence to disbelieve the identification of the appellants during Test Identification Parade and in Court.

In Wakil Singh Case (supra) the Apex Court had acquitted the appellants on the ground that one had been identified by a single witness and another had pock marks on his face. In the instant case, all the appellants have been identified by more than one witness in Court as well as in the course of the test identification parade. I have already observed that the accused persons while participating in the test identification parade were required to put their hands behind their backs and hence the amputation of the right hand of the appellant, Prasenjit could not have been a telltale sign to identify him.

In Yeshwant and Others Vs. The State of Maharashtra, there was evidence that the suspect had been shown to the witness prior to the test identification parade and he had a tape on his neck. Such or similar circumstances are not evident from the facts of this case. Accordingly, the aforesaid authorities are of no assistance to the appellants. In view of the aforesaid discussion, I am of the opinion that prosecution evidence particularly of P.Ws. 1, 2, 3 and that of P.W. 10 clearly establish that the appellants were identified by the witnesses both in Court during trial as well as in the course of test identification parade.

It has been argued on behalf of the appellant, Krishna Roy that he was known to P.Ws. 3 and 4 and therefore her identification in Court or in the course of test identification parade is irrelevant. Although it is the prosecution case that P.Ws. 3 and 4 knew Krishna and Sipra beforehand, it cannot be said that they were known to P.W. 5, caretaker of the building. P.W. 5 has identified them appellant Krishna and Sipra as the persons who were standing in front of the building and awaiting for other miscreants who return from the building after dacoity and thereafter all of them fled with the booty. Such evidence of P.W. 5 is wholly unshaken in cross-examination. P.W. 5 identified Krishna and Sipra both in test identification parade and in Court. As a result, their participation in the dacoity is wholly established.

Coming to the evidence of recovery of stolen articles, I find that pursuant to disclosure statement of the appellant, Dipak (Exhibit-25) which has been proved by P.W. 24, Investigating Officer, recovery was made on 14.10.2008 of an improvised revolver, with cartridge of Rs. 2,500/- and one gold ring studded with american diamond. Subsequently, on 16.10.2008 Dipak made a further disclosure statement (Exhibit-28) pursuant whereto a DVD player and a mobile phone were recovered. Such seizure has been proved by P.W. 18, A.S.I. of police, Sumanta Dhar. Learned Judge disbelieved the seizure of the improvised pipegun on the premise as it is absurd that a firearm utilized during dacoity would be kept in the premises in such an open manner. I find along with the firearms there was a sum of Rs. 2,5,00/- in 100 Rupee notes. There is nothing on record to correlate the aforesaid seized money to the dacoity. However, pursuant to the disclosure statement of Dipak, gold ring studded with american diamond was seized from his possession. It has been criticized that the gold ring with american diamond was not identified by P.W. 3 in test identification parade. P.W. 3 identified the same in Court in the course of trial. In view of the fact that the recovery had been made pursuant to a disclosure statement of the accused and as the stolen article viz. gold ring with american diamond have been described in the First Information Report as stolen articles. I am of the opinion that the aforesaid gold ring with american diamond recovered from the possession of Dipak is a part of the stolen booty. I, however, unable to convince myself that the seized DVD player or mobile phone can be said to be stolen articles. There is no evidence on record that those articles had been purchased by the monies stolen in the course of dacoity. In the absence of such evidence it is unsafe to come to a conclusion that such seized articles were purchased from the monies stolen during dacoity.

With regard to the seizure effected from appellant Prasenjit, I find that pursuant to his disclosure statement him (Exhibit-27) to the Investigating Officer, P.W. 24, on 16.10.2008 four gold buttons with gold chain were seized in the presence of P.W. 24 (I.O.), P.W. 18, A.S.I. of police, Sumanta Dhar, and other independent witnesses. Independent witness (P.W. 14) has corroborated such evidence. It has also been argued that gold ornaments were not examined by a goldsmith to establish as to whether they were actually made of gold or not. I find the articles were identified by P.W. 3 in Court and hence it can be safely presumed they are made of actual gold. It has been argued that the place of seizure has not been proved to be in the ownership of the appellant, Prasenjit. I am of the opinion as the seizure had been effected pursuant to a disclosure statement of the appellant which is duly proved there is no reason to disbelieve such seizure on the premise it has not been established that he is the owner of the premises from where the stolen articles were recovered. I am of the opinion the fact that articles seized from appellant Prasenjit, are stolen articles have been proved beyond reasonable doubt.

Similarly prosecution has proved disclosure statement of the appellant Krishna Roy (Exhibit 26) to P.W. 24, Investigating Officer, made on 16.10.2008. Pursuant to such statement four gold buttons with chain, one currency note of 10 UK Pound and another currency note of 10 US Dollar were recovered. Such seizure has been proved by the evidence of P.W. 14, Subhasish Banerjee as well as by P.W. 18, A.S.I. of police and P.W. 24 (Investigating Officer). It has been argued that a criminal case is pending against P.W. 14 and hence of that he is an unreliable witness. I find that seizure was effected pursuant to a disclosure statement of the appellant which has been proved in accordance with law. Seized articles were identified by P.W. 3 in the course of his deposition. Even if one dismisses the evidence of P.W. 14, I am of the opinion that the seizure has been proved by the evidence of P.Ws. 18 and 24. Nothing has come on record to disbelieve the version of the police witnesses.

It has been argued that examination of the appellants u/s 313 of the Code of Criminal Procedure were not conducted properly. Reliance has been made on Lattu Mahto and Another Vs. The State of Bihar (Now Jharkhand), I am unable to accept such submission. I find examination u/s 313 of the Code of Criminal Procedure had been conducted in accordance with law. In the case of Laltu Mahato (supra) the Apex Court held that as the charge was not framed properly and during examination u/s 313 of the Code of Criminal Procedure appropriate question had not been framed, the accused had been prejudiced during trial. No such circumstance is transpiring in the facts of the case. There is no defect in charge. Appellants were fully aware of the prosecution case. Examination u/s 313 of the Code of Criminal Procedure was in due compliance of all requirements of law. Accordingly, the cited case is of no assistance to the appellants. In view of the aforesaid discussion, I hold that the prosecution has been able to prove his case beyond reasonable doubt. The conviction of the appellants u/s 395/120B of the Indian Penal Code is accordingly upheld.

Coming to the issue of sentence, it has been argued on behalf of the appellants that they are in custody for about six years. I find that the prosecution has not been able to prove its case u/s 397 of the Indian Penal Code. The appellants have no previous conviction.

In view of the aforesaid facts, I am of the considered opinion that the sentence imposed on the appellants may be reduced and the appellants are directed to suffer rigorous imprisonment for six years each and pay a fine of Rs. 3,000/- each, in default to suffer rigorous imprisonment for six months more for the offence punishable u/s 395/120B of the Indian Penal Code.

The appeal is partly allowed to the aforesaid extent.

Copy of the judgment alongwith the lower Court records be sent down to the trial court at once.

I record my appreciation for the able assistance extended by Ms. Sinha and Ms. Chatterjee as amicus curiae for disposal of the appeals.