MD. KURBAN vs STATE OF WEST BENGAL

Joymalya Bagchi, J

Perused the records.

The appeal was preferred on behalf of the appellant from jail. It appears that the other co-convicts have not preferred any appeal against the selfsame

judgement and order of conviction and sentence. From the records it also transpires that the appellant has already served out the substantive sentence

imposed upon him. Under such circumstances, I am inclined to dispose of the appeal today.

The prosecution case against the appellant and other accused persons is to the effect that on 8th November, 2004 at around 9:45 P.M. they had

entered the house of one Dola Roy (PW1) under the ruse of demanding subscriptions and when her brother-in-law, Aloke Roy (PW8) opened the

door, they entered into her room forcibly, took the key of the almirah, opened the almirah and looted away various gold ornaments from the almirah.

Over the incident, Chinsurah Police Station Case No. 261/04 dated 8th November, 2004 under Section 392 of the Indian Penal Code was registered.

Subsequently, charge-sheet was filed under Sections 395/412 of the Indian Penal Code. The case was committed to the Court of Sessions for trial and

disposal. Charges were framed under Sections 395/412 IPC against the appellant and four other accused persons. The appellant and other accused

persons pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 12 witnesses and exhibited a number of documents. In

conclusion of trial, the trial Judge by the impugned judgement and order dated 18th/19th August, 2005 convicted the appellant and one Bhola Das @

Kancha for commission of offence punishable under Section 392 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for ten

years each and to pay fine of Rs.2,000/- each, in default, to suffer rigorous imprisonment for six months more. Other accused persons namely, Babulal

Das and Pintu Bacher were convicted under Section 411 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three years

each and to pay fine of Rs.1,000/- each, in default, to suffer rigorous imprisonment for three months more respectively. Co-accused Pranab Das @

Raju was however, acquitted of the charges levelled against him.

PW1, Dola Roy is the de-facto complainant in the instant case. She deposed that the appellant and four other accused persons had knocked at their

door on the ruse of collecting subscription for Kali Puja and when her brother-in-law, Alok Roy (PW8) opened the door, they forcibly entered her

room and took the key of the almirah and decamped with the valuable gold ornaments therein. She identified the appellant and one Bhola Das

@ Kancha in T.I. Parade as well as in court as the miscreants. Some of the stolen articles were recovered in the course of investigation and she had

identified those articles in the police station. She also identified those articles in court. She proved her written complaint.

Other relation witnesses namely, her husband (PW2) and her brother-in-law (PW8) have corroborated her evidence. Local witnesses namely, PW3

and 4 have also corroborated her version.

PW6, Judicial Magistrate deposed that PW1 (Dola Roy) had identified the appellant and one Bhola Das @ Kancha as the miscreants who had

committed dacoity in the course of Test Identification Parade.

PW9 & 10 proved the vouchers with regard to the purchase of gold ornaments by

PW1 which had been stolen from her residence on the fateful day.

PW12, Investigating Officer recovered one beecha har, one mongal sutra, one wrist watch and one gold top from the house of Bhola Das @ Kancha

in the presence of PW11. He also recovered one pair of sita dul from the house of Pintu Bachar and one gold plated necklace, one gold tikli and one

gold plated mongal sutra from the house of Babulal Das. The articles were seized under a seizure list and were identified by PW1 at the police station

as well as in court.

From the aforesaid evidence it appears that the victim, Dola Roy (PW1) had identified the appellant as one of the miscreants who along with others

had forcibly entered her room and committed dacoity of gold ornaments by opening the almirah. Gold ornaments recovered from the co-accused

persons were identified by the victim (PW1) during trial. PW1 also identified the appellant during T.I. Parade as deposed by PW6. Her evidence had

been corroborated not only by her relations but also by local witnesses like PW3 & 4.

Hence, I am of the opinion that the conviction and sentence of the appellant is justified and calls for no interference.

The appeal is accordingly, dismissed.

The period of detention, if any, undergone by the appellant during investigation, enquiry and trial shall be set off against the substantive sentence

imposed upon him in terms of Section 428 of the Code of Criminal Procedure.

 In view of the fact that the appellant has already served out the substantive sentence, he shall be released from custody upon payment of the fine

imposed upon him and if he is not wanted in any other case.

Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.

I agree.