NOOR HOSSAIN ALIAS RAJESH AND ANOTHER vs STATE OF WEST BENGAL

The appeal is directed against the judgment and order dated 8.12.2008

passed by learned Additional Sessions Judge, 6th Fast Track Court, Bichar

Bhavan, Calcutta, in Sessions Trial No.4 of February 2007 corresponding to

Sessions Case No.120 of 2006 convicting the appellants herein for the

commission of offence punishable under section 394 of the Indian Penal Code

and sentencing them to suffer rigorous imprisonment for seven years and to pay

a fine of Rs.2000/- in default to further rigorous imprisonment for six months

more.

Prosecution case, as alleged, against the appellants is to the effect that on 22.8.2006 at

about 11.35 p.m. the complainant Samir Saha was waiting for boarding a bus near the crossing

of Lenin Sarani and Madan Street and while he was talking on his mobile phone, three unknown

persons came in a motorcycle and snatched away the mobile phone from him. The said Nokia

mobile phone was of model No.3230 and the sim number was 9836162679. The miscreants had

snatched the said mobile phone at gun point and when he resisted, one of them fired at him

resulting in gunshot injury on his neck. The complainant was admitted to Medical College and

Hospital and upon interrogation by the police he made a statement before them resulting in

registration of New Market P.S. Case No.130 dated 23.8.2006 under sections 397 / 307 of I.P.C.

and 25(1B)(a)/27 of the Arms Act . Upon completion of investigation, charge-sheet was filed under

sections 394 / 397 / 307 of I.P.C. against the accused persons, namely, Noor Hossain @ Rajesh,

Sorab Alam @ Room and Md. Ajaharuddin @ Ajhar and thereafter a supplementary charge-sheet

was also filed under sections 25(1B)(a) / 27 of Arms Act. The case was committed to the Court of

Sessions and charges were framed under sections 307 / 394 / 397 / 34 of I.P.C. and also under

section 25(1B)(b) of the Arms Act against the aforesaid accused persons. They pleaded not guilty

and claimed to be tried. It is pertinent to note that co-accused, Md. Ajaharuddin @ Ajhar died

during trial. In the course of trial, prosecution examined twenty-three witnesses. The defence of

the appellants was one of innocence and false implication. In conclusion of trial, the learned

Sessions Judge by judgment and order dated 8.12.2008 convicted and sentenced the appellants,

as aforesaid.

Ms. Gomes, learned counsel appearing for the appellants submitted that apart from

P.W.1, Samir Saha none of the witnesses identified the appellants. Identification of P.W.1 in the

course of test identification parade as well as in the Court is not free from doubt. It is submitted

that the recovery of the mobile phone on the basis of leading statement of appellant no.1 has not

been established beyond reasonable doubt. It is, therefore, submitted that the appellants ought to

be acquitted from the instant case.

On the other hand, Ms. Sinha appearing for the State/respondent submits that the

evidence of P.W.1, victim, is clear and convincing. He had identified the appellants as the miscreants. He was assaulted and had been treated by P.W.16, Dr. Arindam Ghosh. Stolen

mobile phone was recovered pursuant to the leading statement of appellant no.1. The motorbike

and the gun had also been recovered in the course of investigation. Hence, the prosecution case

has been proved beyond reasonable doubt.

P.W.1, Samir Saha is the victim and the most vital witness in the instant case. He deposed

that on 22.8.2006 at about 11.15 p.m. he was standing at the junction of Lenin Sarani and

Madan Street and waiting for a bus. While he was talking on his mobile phone bearing model

No.3230 and sim No.9836162679, three men riding on the motorbike came there and snatched

away his mobile phone. When he tried to obstruct, one of them pointed a revolver at him and fired

from the revolver causing bullet injury on his neck. None of the people in the locality helped him.

He hailed a taxi and went to Medical College and hospital. He identified the accused persons in

Court and he deposed that he also identified them in Presidency Jail. He stated that one Md.

Ajharuddin had revolver on his hand and fired at him and also snatched the mobile phone from

him. He stated that the appellant no.1 was riding the bike and the appellant no.2 was sitting in

the middle. The mobile phone snatched from him belonged to one Sanjoy Dutta and he had

purchased from him before the incident at a price of Rupees six thousand. He identified the

mobile phone (Mat. Exhibit-III). He proved the original sale letter relating to the purchase of the

mobile phone from Sanjoy Dutta (Exhibit-1). He also produced the xerox copy of the purchase

bill. He stated that he made statement to the police in the hospital. He signed on the statement.

He proved his signature on the statement.

P.W.2, Faran Khan deposed that he had business of selling electronic goods. On

22.8.2006 at about 11.15 p.m. when he was waiting for a bus at the junction of Lenin Sarani and

Motilal Street he found one man who was talking on his mobile phone and at that time three

persons came in a motorbike and snatched away a mobile phone from that man and fired at him

causing injury on his neck. The injured man took a taxi and went towards Moulali. He, however,

was unable to identify the appellants in the Court.

P.W.3, Kajal Mondal is a plan maker who proved the rough sketch map as well as the final

plan of the place of occurrence (Exhibit-3/1 and 3/2).

P.W.4, Sanjoy Dutta is the person who sold the mobile phone to P.W.1. He identified the

mobile phone in Court. He proved the purchase bill.

P.W.5, Mustakh Ahamed Tarafder is the manager of Rox Bar where P.W.1 used to work.

He deposed that on 23.8.2006 he was informed by the father of P.W.1 that his son was admitted

to Medical College and Hospital with gunshot injury which he had sustained in the night of

22.8.2006 when he returned from the bar.

P.W.6, Mintu Patra is a friend of P.W.1 who received information that P.W.1 was admitted

in the hospital. He went to the hospital. He identified the wearing apparel of the victim. He put

his signature on the seizure list as well as on the label of the sealed packet of the wearing apparel

which were seized at the hospital.

P.W.7, Netai Saha is the father of P.W.1 who deposed that on 22.8.2006 at about 1.00-

1.30 a.m. he received information that his son sustained gunshot injury and had been admitted

to Medical College and Hospital. On reaching the hospital he came to know that some persons

had shot at his son causing gunshot injury. He identified the wearing apparel of his son which

were seized by the police under a seizure list. He proved his signature on the seizure list as well

as on the label of the sealed packet of wearing apparel.

P.W.8, Srinibas Naskar is the witness to the seizure list of cartridge recovered by police

from the place of occurrence. He proved signature on the seizure list and on the label of the

cartridge. He identified the cartridge (Mat. Exhibit-IV).

P.W.9, Bachan Mallick also identified the cartridge but was declared hostile.

P.W.10, Md. Israfil was tendered for cross-examination and P.W.12, Sk. Ashiruddin C.

Ashir was declared hostile.

P.W.11, Dilip Kumar Singh is a friend of P.W.1. He corroborated the evidence of P.W.6 and

P.W.7.

P.W.13, Dr. Nalanjan Mitra treated the victim at Medical College and Hospital. He deposed

that P.W.1 was admitted to the said hospital with bullet injury on the back of his neck. He

remained there from 23.8.2006 to 27.8.2006. He proved the bedhead ticket of the victim (Exhibit-

9).

P.W.14, Tapas Guha is the record keeper of Medical College and Hospital. He deposed that

police seized the bedhead ticket of the victim under a seizure list. He signed on the seizure list. He

identified the bedhead ticket of the victim.

P.W.15, Jayanta Paul is the Deputy Manager, CESC system control. He deposed that in

response to a letter dated 19.9.2006 issued by Anti Dacoity and Robbery Squad, D.D., Lalbazar

they replied on 27.10.2006 that power supply at the relevant point of time on 22.8.2006 at the

place of occurrence was not interrupted.

P.W.16, Dr. Arindam Ghosh was Emergency Medical Officer at Medical College and

Hospital. On the fateful day he examined the victim. History of the case stated that the victim was

shot by firearms on his neck by unknown persons moving on a motorcycle when he was using a

cell phone and they tried to snatch away the said phone. He proved the injury report (Exhibit-12).

P.W.17, Abdul Kadir and P.W.18, Asif Nomani are the seizure list witnesses of the seizure

of the mobile phone pursuant to leading statement of appellant no.1.

P.W.19, Suberthi Sarkar and P.W.20, Sambhu Sarkar are Magistrates who conducted test

identification parade in the instant case.

P.W.21, Dr. A. Bandapadhyay is the Ballistic expert who examined the improvised firearm.

P.W.22, Ratan Kumar Saha and P.W.23, S.K. Mondal are the investigating officers in the

instant case who investigated the case and after completion of investigation submitted charge-

sheet.

From the evidence on record it is clear that P.W.1, the victim identified the appellants as

the miscreants who had snatched the mobile phone from him and co-accused Ajaharuddin had

fired at him causing gunshot injury. P.W.1 identified the appellants both in Court as well as in

the course of test identification parade. His evidence remained unshaken during cross-

examination. Injury on P.W.1 has been proved by the medical witnesses P.W.14 and P.W.16 who

proved the bedhead ticket and injury report of the victim being Exhibit-9 and Exhibit-12

respectively. Evidence of other witnesses have corroborated the version of P.W.1 with regard to

the snatching of mobile phone at the place of occurrence and the gunshot injury suffered by him

in the course of the transaction. That apart, P.W.23 has proved the leading statement of appellant no.1 resulting in recovery of the stolen mobile phone. Independent witnesses, namely, P.W.17 and

P.W.18 have proved the seizure pursuant to the statement of appellant no.1. The aforesaid

evidence on record leaves no doubt in one''s mind that the prosecution case has been proved

beyond reasonable doubt.

The conviction and sentence of the appellants are thus upheld.

The appeal is accordingly dismissed.

The period of detention suffered by the appellants during investigation, enquiry and trial

shall be set off from the substantive sentence imposed upon them in terms of 428 of the Code of

Criminal Procedure.

A copy of the judgement along with L.C.R. be sent down to the trial Court

at once for necessary action.

Urgent Photostat certified copy of this order, if applied for, be given to the

parties on priority basis upon compliance of all formalities.