Sk. Milan vs State

Toufique Uddin, J.—This appeal arose out of judgment and order dated 8/9.1.2001 passed by the learned Additional Sessions Judge, Alipore, South 24 Paraganas in Sessions Trial No. 2(9)/96 which corresponds to Sessions Case No. 11(6)/94 in connection with Alipore P.S. Case No. 31 dated 7.2.94, convicting thereby the appellant and two other for the charges, framed against them for allegedly committing an offence punishable u/s 396 of the IPC and sentencing them to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 10000/- each in default R.I. for further term of two years. In the background of this appeal, the prosecution case in a nutshell is that on 6.2.94 around 9.30 P.M. Sri Gour Chandra Ghosh of M/s. Ghosh & Brothers Jewelleries situated at 391, D.H. Road, Calcutta was proceeding in a car No. WB-02/4798 alongwith relatives Shyamal Ghosh and one Babulal Patwa and Satyanarayan Patwa and driver Ramesh Shaw. After closing the jewellery shop, they reached in front of 3, Raja Santosh Road, Calcutta, New Alipore. Their car was overtaken and stopped by one taxi bearing No. WMT 1368 and the accused persons alongwith other with deadly sharp cutting weapons viz. vojali, rivolver etc. surrounded the car and caused grievous injury to Babulal Patwa and Satyanarayan Patwa. They snatched away the bag from Satyanarayan Patwa, which contained some instruments for making ornaments as well as some ornaments and decamped with the said articles in the aforesaid taxi from there. Satyanarayan Patwa was admitted to S.S.K.M. Hospital where he succumbed to his injuries.

On receipt of complaint, the Police started New Alipore Police Station case No. 31 dated 7.2.94 u/s 396 IPC. After investigation, the Police has submitted charge-sheet against the accused person u/s 396 IPC.

The case was committed to the court of Sessions by the learned Magistrate.

On hearing of both the sides, charge was framed u/s 396 IPC by the learned trial court. The contents of the charge was read over and explained to the accused persons who pleaded not guilty and claimed to be tried.

To contest this case, the prosecution examined 18 witnesses while the defence side examined none. However, the accused persons were examined u/s 313 of the Code of Criminal Procedure. The defence case, as appears from the trend of cross-examination as well as replies, given by the accused persons u/s 313 of the Code of Criminal Procedure is denial of offence with a plea of false implication.

On hearing of both sides and considering materials on record, the learned trial Judge convicted the appellant alongwith others.

Now, the point for consideration is if the judgment and the order are sustainable in the eye of law.

Needless to mention that the present appeal has been filed by one of the convicts Sk. Milan.

It was contended by the learned Counsel for the appellant that the case has not at all been proved inasmuch as the accused persons could not be identified in court.

On the other hand, the learned Counsel for the State made his usual submissions in a fair manner.

It is a case of dacoity allegedly taking place at night in a car and that incident lasted for 3/4 minutes. So, the question of identification of the accused persons is of prime concern. The FIR shows that 6/7 unknown persons within their twenties intercepted the vehicle of the defacto complainant and inflicted injuries to the occupants including Satyanarayan Patwa who ultimately, succumbed to his injuries at S.S.K.M. Hospital. In the FIR, lodged by Sri Gour Chandra Ghosh, it was stated that the miscreants threw chilli dust on the eyes of the complainant and other occupants of the vehicle and snatched the bag, containing jewellery articles.

PW 1 is the plan maker. He made a rough sketch map in respect of the P.O. PW 2 is the FIR maker as the defacto complainant who saw the incident. According to his evidence, around 9.30 P.M., when he alongwith his companions were passing through 3, Raja Santosh Road, Calcutta, New Alipore, all on a sudden 6/7 persons coming from a taxi got down and surrounded their car. At that time Babulal Patwa taking seat in the front side, opened the window screen when one of the accused persons struck Babulal Patwa by one sharp-cutting long weapon on the right side of the thigh. When Babulal Patwa jumped up, the accused person snatched away the bag from him and started assaulting him and some of them dragged out Ramesh, the driver. Chilli dust was also thrown on the eyes of the driver and they beat him up by the other side of the vojali. Similarly, the complainant''s brother was treated with chilli dust and all on a sudden they fled away alongwith others towards Chetla. The complainant got 5/6 stitches on his shoulder and while Shyamal and Ramesh were treated in S.S.K.M. Hospital but Babulal Patwa remained admitted. Next day at 4.30 A.M. the Police first visited his house and took statement from him and again visited his house at 7 A.M. and informed around 7.30 A.M. that Babulal Patwa died.

PW 2 identified one of the accused persons in the T.I. Parade viz. Golam Sabir but he could not identify anybody in Presidency Jail though he claimed that the whole incident lasted for about 3/4 minutes and he witnessed the incident. Therefore, it is clear that when such an incident took place the witness is expected to recognize the face and appearance of the witness, although, it happened in an unusual circumstances. Nor it is anywhere in the materials on record that the miscreants covered their faces with clothes or something like this. Similarly, PW 3, the cousin brother of PW 2 is a worker in a shop. PW 4 is the driver of the car in which the complainant and his companions were traveling. PW 5 is a driver of a private car. They all claimed to be eye-witnesses but none of them could identify the accused persons including the present appellant in the court. This witness was also declared hostile. PW 6 was with PW 5 at the material point of time when PW 5 was repairing his punctured tyre on 3, Raja Santosh Road, Calcutta, New Alipore. He stated that in a taxi, 5/6 miscreants came and he saw some ''jhamela'' with the occupants of the private car i.e. with the complainant and his companions. PW 7 was also a hostile witness not supporting the prosecution case. PW 8 sent the FIR to New Alipore P.S. for necessary action. PW 9 is a doctor. He examined Babulal Patwa and found sharp-cutting stab injury. PW 10 held P.M. report over the dead body and found injuries on the deceased and opined that the injuries were ante mortem and homicidal in nature. PW 11 is the wife of Babulal Patwa. He stated nothing about the accused persons. PW 12 is a Judicial Officer and he held the T.I. Parade of the accused persons including the present appellant and he said that the witness Gour Chandra Ghosh i.e. the complainant identified in the T.I. Parade at Jail only one Golam Sabir but not the present appellant. PW 13 is the younger brother of the deceased Babulal Patwa. He heard about the incident. PW 14 is another relation of Babulal Patwa. He signed the inquest report. PW 15 is another Magistrate who also held the T.I. Parade.

The witness Sk. Asgar identified in Jail only one Md. Rafiq but he could not identify other accused person. Nobody said that Sk. Milan was identified in the T.I. Parade or in court. PW 16 is the owner of the taxi bearing No. 1368 which was allegedly used by the accused persons. PW 17 heard the incident. In cross-examination, he stated that since 1995 he could not see clearly due to defect of his vision. So, he even could not identify the accused person. PW 18 proved formal FIR and he is the I.O. who submitted charge sheet after completion of investigation.

A careful scrutiny of the evidence shows that the present appellant was not identified in court. This being the position, his participation in the alleged offence has not also been proved. Identification of the accused is the plinth in a case of dacoity. So, consideration of other aspects as stated by the witnesses including the eye-witnesses are not helping the prosecution case. The appellant was examined u/s 313 Code of Criminal Procedure and incriminating pieces of evidence were put to them but those were replied in the negative.

It is well settled principle that the report of the T.I. Parade is a corroborative piece of evidence and solely on the basis of this evidence no accused can be convicted. Moreover, for abundant precaution, the evidence of the eye-witnesses are also scrutinized to find if at all any other substantial evidence is available against the present appellant. That too is not available. The chain of other circumstantial evidence to rope the appellant unerringly was not clear and complete. The present appellant was not known from before. Therefore, naming of him does not arise and as such he could not be identified either in the T.I. Parade or in court. Admittedly, chili dust was thrown on the eyes of the occupants of the vehicle in which the defacto-complainant and the others were moving. So, it is a point for consideration that the vision of the eye-witnesses was less than normal and even so to speak is such that identification of any assailant by them is difficult. It is trite to say that the substantive evidence is the evidence of identification in court. The facts which establish the identity of the accused are relevant u/s 9 of the Evidence Act. In a criminal case the prosecution is under an obligation to prove the presence of accused beyond reasonable doubt vide Kishore Shambhudatta Mishra and Others Prakash Alias Laxminarayan Shambhudatta Mishra Vs. State of Maharashtra, and Assistant Collector of Central Excise, Calicut Vs. V.P. Sayed Mohammed, . Further in view of the decision as reported in Hardial Singh Vs. State of Punjab, , if identification of assailants is found to be doubtful then the benefit would also accrue to the appellant equally. Of course, in the given case no identification of the appellant was made by any of the so-called eye-witnesses. So, the decision as reported in (2010) 2 SCC (Cri) 1385 referred before us is distinguishable here.

Therefore, considering all aspects, we are of the view that the conviction and the sentence, as passed by the impugned judgment are not sustainable in the eye of law and hence set aside.

The appellant is acquitted and be released from bail bond at once.

Upon appropriate Application(s) being made, urgent Photostat Certified copy of this Judgment, be given/issued expeditiously subject to usual terms and conditions.

Kanwaljit Singh Ahluwalia, J.

I agree.