Md. Jamal @ Jamaluddin Khan & Anr vs The State Of West Bengal & Anr
2021 Latest Caselaw 526 Cal

Form No. J(1)
                  IN THE HIGH COURT AT CALCUTTA
                  Criminal Revisional Jurisdiction
Present :
The Hon'ble Mr. Justice Bibek Chaudhuri

                     CRA/556/2017
                           With
  IA No. CRAN 3   of 2018 (Old No. CRAN 2106   of 2018)
                            +
  IA No. CRAN 4   of 2019 (Old No. CRAN 1145   of 2019)
                            +
  IA No. CRAN 5   of 2020 (Old No. CRAN 3530   of 2020)
                            +
  IA No. CRAN 6   of 2020 (Old No. CRAN 3532   of 2020)
                            +
  IA No. CRAN 7   of 2020 (Old No. CRAN 4568   of 2020)
                            +
  IA No. CRAN 8   of 2020 (Old No. CRAN 4569   of 2020)
                            +
                    IA No. CRAN 9 of 2020

           Md. Jamal @ Jamaluddin Khan & Anr.
                           -Vs.-
             The State of West Bengal & Anr.

Mr. Fazlur Rahaman, Adv.,
Mr. Sourav Paul, Adv.       ...for the appellant no. 1.

Mr. Kallol Mondal, Adv.
Mr. Krishan Ray
Ms. Amrita Chel
Mr. Souvik Das              ...for the appellant no. 2.

Mr. Ranabir Roychowdhury, Adv.
Mr. Iqbal Kabir, Adv.      .... For the State.

Heard on     : 18.01.2021

Judgment on : 25.01.2021

Bibek chaudhuri, J.

The instant appeal is filed by the accused/convicts/appellants in

S.T No.1(8)2000/SC 56(2) 1999 against the judgment and order of

conviction and sentence under Section 392/397 of the Indian Penal

Code.

Both the appellants were convicted under Section 235(1) of the

Code of Criminal Procedure for the offence punishable under Section 392

of the Indian Penal Code and sentenced to suffer rigorious imprisonment

for 7 years each and to pay a fine of Rs.50,000/- each in default to suffer

further rigorious imprisonment for six months.

The aforesaid convicts were further sentenced to suffer rigorious

imprisonment for a term of 7 years for committing offence under Section

397 of the Indian Penal Code. The sentences were directed to be run

concurrently.

Entally Police Station case no.40 dated 27th February, 1997 under

Section 392/397 of the Indian Penal Code and Sections 25(1B) (a) of the

Arms Act was registered against two unknown accused persons on the

basis of a statement made by one Biswajit Dey and recorded by one Kunja

Bihari Das, SI of Police attached to Entally Police Station at the relevant

point of time. It was stated by the said Biswajit Dey that on 27th February,

1997 at about 11 am he was going to State Bank of India, Moulali Branch

to deposit a sum of Rs.65,000/- keeping the said sum of money with duly

filled in pay-in-slip in one chocolate colored rexene bag. He reached the

ground floor of the Bank at about 11:30 am. Suddenly he was attacked by

a person from behind with sharp cutting weapon. He received injury on

his back, face, ear and head and fell down on the stairs of the Bank.

Immediately thereafter, one person who was well built and wearing a blue

coloured pant and a T-shirt forcibly took away his bag containing money

and pay in slip and started to flee away. The defacto complainant raised

an alarm shouting "Dacoit, Dacoit" and chased them. One of the

miscreants took shelter inside a garment shop with Revolver and the bag

of the informant containing money and pay in slip in his hand. Local

people also chased them. Immediately after the said miscreant took

shelter inside the garment shop, local people closed the rolling shutter

gate of the said shop. The informant was subsequently taken to Nil Ratan

Sarkar Hospital.

After registering the case as aforesaid, Police started investigation

and finally submitted charge sheet against both the accused/appellants

under Sections 392/397 of the Indian Penal Code. The accused person

duly faced trial.

It is pertinent to mention here that the appellant No.1 Sk.

Jamaluddin faced trial while on bail. However, appellant no.2 Dilwara

Hossain faced trial while he was in judicial custody. It is ascertained from

the Lower Court Record that prosecution examined in all 13 witnesses.

Amongst them PW-3, Biswajit Dey is the defacto complainant of the case.

PW-4 Naresh Shaw is a shop owner at Entally market. PW-5 Ratan Shaw

and PW-6 Satyanjay Mukherjee were witnesses to the seizure of a bag

containing money amounting to Rs.65,000/- and pay in slips and one

improvised fire arm, but both the said witnesses did not support the

prosecution case except their signature on the seizure list. They were

eventually turned hostile against the prosecution. PW-7, Deb Ranjan

Bhunia, an owner of a hotel situated opposite to the State Bank of India,

Moulali Branch, was also declared hostile by prosecution. PW-8, Dr. Dulal

Karmakar was a Medical Officer attached to Nil Ratan Sarkar Medical

College & Hospital. In his evidence he stated that on 27th February, 1997

one Biswajit De was admitted to Nil Ratan Sarkar Medical College &

Hospital. PW-10 Dr. Ashim Kumar Das was one of the Directors of Maple

Nursing Home Pvt. Ltd. Biswajit De was admitted to the said Nursing

Home on 28th February, 1997 with sharp cutting injuries on his left ear,

right of the face, right forearm, back and head. He was discharged from

the said Nursing Home on 9th March, 1997. The Discharge Certificate

issued by the Nursing Home authority in the name of Biswajit De was

marked 'X' for identification. During investigation of the case. PW-11 Mr.

Jaladhar Mondal and PW-12 Mr. Amit Chattopadhyay were posted as

Judicial Magistrates at Sealdah. On 3rd October, 1997 and 19th March,

1997 respectively, they conducted test identification parade in respect of

two appellants. PW-13 Sub Inspector Kunjabehari Das was the

investigation officer of the case.

During trial of the case some documents were marked exhibits

which I propose to refer subsequently in the body of the judgement.

Learned advocate for the appellant no.1 has assailed the impugned

judgement and order of conviction and sentence mainly on the ground of

delay in holding test identification parade of appellant no.1. It is

submitted by the learned advocate for the appellant no.1 that test

identification parade was held after more than seven months from the

date of the alleged incident. In order to substantiate his argument he

refers to the First Information Report and submits that the defacto

complainant did not give any distinctive particular and physical

appearance and special features of the accused person. He himself stated

in his complaint which was recorded by PW-13 Kunjabehari Das that he

was attacked by one of the miscreants from behind. Therefore, he had no

occasion to see the assailant. He further refers to the evidence of PW-3

where he candidly admitted that test identification parade was held in

presence of the Police Officer. Therefore, test identification parade so far

as it relates to appellant no.1 is vitiated and cannot be relied upon. He

also refers to the evidence of PW-11 who was Judicial Magistrate, 4th

Court at Sealdah at the relevant point of time and vide its order dated 3rd

October, 1997 he clearly recorded that investigating officer brought the

identifying witnesses. It was also not reflected as to who had identified the

under trial prisoners and the suspect with the Magistrate before holding

the test identification parade.

Learned advocate for the appellant no.1 has submitted series of

decisions of the Hon'ble Supreme Court where conviction was set aside as

a result of improper test identification parade. He first relies upon a

decision of the Hon'ble Supreme Court in Chunthuram vs. State of

Chhattisgarh (Criminal Appeal No.1392 of 2011) passed by the Hon'ble

Supreme Court on 29th October, 2020. It is held in the said judgement

that the test identification evidence is not substantive piece of evidence

but can only be used in corroboration of statement in Court. The

infirmities in the conduct of test identification parade has still effect over

the prosecution case, when the identification is held in presence of Police.

The restrained communication tantamount to statement made by the

identifier to a Police Officer in course of investigation and they fall within

the span of Section 162 of the Code of Criminal Procedure.

On the similar principle, the learned counsel for the appellant no.1

relies on the following decisions:-

Museer Khan vs. State of Madhya Pradesh : 2010 SCC 748, Ram

Kishan Mithanlal Sharma v. State of Mumbai; 1955 (1) SCR 903. He

also refers to the following decisions on the similar point regarding

veracity of evidence in test identification parade:

i) Satrughana @ Satrughana Parida v. State of Orissa

(Criminal Appeal No.727-29 of 1992) decided on

December 10, 1992;

ii) Subash and Shiv Shankar v. State of Uttar Pradesh

decided on 14th April, 1987.

iii) Wakil Singh vs. State of Bihar decided on 31st March,

1981,

iv) Bali Ahir v. State of Bihar decided on January 18, 1983.

v) Mohd. Abdul Hafeez v. State of andhra Pradesh reported

in AIR 1983 SC 367.

According to the learned advocate for the appellant, the alleged

incident took place on 27th February, 1997. Test identification parade was

held on 3rd October, 1997 by PW-11. The Hon'ble Supreme Court in the

aforesaid cases disbelieved identification of the accused/appellant in test

identification parade held after 15 days from the date of occurrence. If the

ratio of the aforesaid judgments is accepted then identification of

appellant Md. Jamal by PW-3 Biswajit Dey must be held to be suspicious

and only on such ground the appellant should be acquitted and the order

of conviction and sentence ought to be set aside.

From the submission made by the learned advocate for the

appellant, it is ascertained that the learned counsel has assailed the test

identification parade mainly on two grounds:-

i) Physical feature of the appellant no.1 was not stated by the

informant at the first possible stage i.e. in course of

recording his statement under Section 154 of the Code of

Criminal Procedure and secondly delay in holding test

identification parade.

Though the law with regard to evidentiary value of test

identification parade is absolutely settled and test

identification parade can never be considered as a

substantive piece of evidence, identification is to be

considered under the facts and circumstances of each

case. In the instant case it is stated in the First

Information Report by the defacto complainant that as

soon as he was assaulted from his behind he turned back

and saw that a well build men wearing a blue pant and T-

shirt was assaulting him and another person was trying to

snatch away the bag containing money from his hand.

After they became successful in snatching the bag, they

started to flew away. The defacto complainant also chased

him. The person who assaulted him managed to flee away.

Another person with a bag and revolver in his hand took

shelter in a garment shop at Moulali market. He was

caught red handed by local people. The said statement was

duly corroborated by PW-3 in his evidence. In course of

cross examination his evidence remains intact. He did not

devoid from what he stated in his evidence in chief

regarding distinctive feature of appellant no.1. Therefore, I

am not in a position to accept the argument advanced by

the learned advocate for the appellant no.1 that the test

identification parade of Md. Jamal cannot be considered as

a result of his distinctive feature being not stated by the

defacto complainant in his statement under Section 154 of

the Code of Criminal Procedure.

ii) The learned Advocate for the appellant No.1 has

questioned the truthfulness of the T.I. Parade of the

appellant on the ground of inordinate delay.

It is true that in most cases of robbery or dacoity

committed by persons are unknown to victims. The only

evidence which may connect with the crime is the evidence

of identification in a T.I. Parade and in some cases

evidence of recovery of articles which are subject matter of

robbery. When nothing was recovered from the possession

of the appellant the only evidence against him is

identification by the victim in T.I. Parade. Therefore, it is

desirable that T.I Parade should be held without

unnecessary delay and it should be held at the earliest

opportunity. However no hard and fast rule can be laid

down in this regard. In Lal Singh vs. State of U.P reported

in AIR 2004 SC 299, the appellant were arrested on 28th

December, 1980 and they were put up for identification in

a T.I. Parade on 4th February, 1981. The Hon'ble Supreme

Court accepted identification of the suspect as trustworthy

under the facts and circumstances of the case. In

Ramanand Ramnath vs. S.O Madhya Pradesh reported in

(1996) 8 SCC 514, T.I Parade was held after about 15

days of the date of arrest of the accused. The Hon'ble

Supreme Court was pleased to hold that there was no

unusual delay in holding T.I. Parade. In Daya Singh vs.

S.O Haryana reported in (2001) 3 SCC 468, it was held by

the Hon'ble Supreme Court that delay in identification

parade cannot be held to be vitiated where an enduring

impression of the identity of the accused was gained

during the incident. In Md. Kalam vs. S.O Rajasthan

reported in (2008) Cr LJ 2602 (SC) , it was held that if the

circumstances are beyond control and there is some delay

in holding test identification parade, it cannot be said to be

fatal to the prosecution. In Matru vs. S.O U.P reported in

(1971) 2 SCC 75, it is observed by the Hon'ble Supreme

Court that identification tests do not constitute substantive

evidence. They are primarily meant for the purpose of

helping the investigating agency with an assurance that

their progress with the investigation into the offence is

proceeding on the right lines. The identification can only be

used as corroborative of the statement in court.

In the instant case the incident took place on 27th February, 1997.

Accused Md. Jamal @ Jamaluddin Khan was arrested on 1st September,

1997 and his T.I. Parade was conducted on 3rd October, 1997. Therefore,

the investigating authority had no occasion to produce Md. Jamal in T.I.

Parade before his arrest. Under such circumstances the argument

advanced by the learned Advocate for the appellant No.1 that T.I. Parade

was held after a lapse of about eight months from the date of incident and

therefore it cannot be relied upon, is not an acceptable proposition in law

under the facts and circumstances of the case.

Except delay in holding T.I. Parade, the learned Advocate for the

appellant No.1 has not raised any issue regarding involvement of the

appellant in commission of the offence. The appellant No.1 was identified

by PW3 on dock during his evidence. The identification of accused in

court during trial is the substantive evidence and such identification was

not questioned in course of cross examination of PW3.

Thus I am not in a position to accept the argument advanced by the

learned Advocate for the appellant No.1 praying for his acquittal.

Mr. Kallol Mondal, learned Advocate for the appellant No.2 does not

make any submission on the point of sentence of appellant No.2 under

Section 392 of the Indian Penal Code. On the charge under Section 397 of

the Indian Penal Code, it is submitted by Mr. Mondal that the penal

provision under Section 397 attracts only when at the time of committing

robbery, the offender uses any deadly weapon, or causes grievous hurt to

any person, or attempts to cause death or grievous hurt to any person.

As against appellant No.2 Mr. Mondal frankly submits that

immediately after the occurrence both the offenders were chased by the

defacto complainant. Both of them were running away and appellant No.2

took shelter in a garment shop situated at Moulali market. The evidence

on record also suggests that he was apprehended by local people from the

said shop with stolen booty and a country made revolver. There is no

evidence that he used the said revolver at the time of committing robbery.

The defacto complainant received cut injury on his back, right hand side

of face, ear and head. Such injuries were caused by a sharp cutting

weapon and not by a revolver. No sharp cutting weapon were recovered

from appellant No.2. Therefore, it is submitted by Mr. Mondal that the

learned trial judge committed error in judgment in convicting the

appellant No.2 under Section 397 of the Indian Penal Code.

I am in agreement with Mr. Mondal that mere possession of deadly

weapon does not satisfy the statutory requirement, as it provides "uses

any deadly weapon" under Section 397 of the Indian Penal Code. But if

the weapon with which the offender was armed was within the vision so

as to be capable of creating terror in the mind of the victim, that would be

sufficient to satisfy the word "uses" for the purpose of Section 397 of the

I.P.C. It need not be further shown to have been actually used for cutting,

stubbing and shooting as the case may be. The decision of the Hon'ble

Supreme Court in the case of Ashfaq vs. State (Govt. Of Nct of Delhi)

reported in (2004) 3 SCC 116 may be relied upon in this regard.

In the instant case PW3 stated on oath, "One run away while the

other who was carrying the bag was turning down and turned down in the

manner for number of times and showed firearm towards me, so that I

might be freighted" (quoted as recorded by the learned trial judge). This

part of evidence was not even contradicted during cross examination of

PW3. In view of such unchallenged testimony of PW3, I have no other

alternative to hold that the prosecution was able to prove the charge

under Section 397 of the Indian Penal Code against appellant No.2.

Learned Advocates for both the appellants lastly submits that the

appellant No.1 has suffered sentence for more than four years. Appellant

No.2 is suffering sentence for five years and two months. Considering the

period of detention of the appellants, the order of sentence may be

reduced up to the period for which they have actually undergone

sentence.

It is held by the Hon'ble Supreme Court in the State of M.P vs.

Santosh Kumar reported in (2006) 6 SCC 1, that in order to exercise the

discretion of reducing the sentence, the statutory requirement is that the

Court has to record "adequate and special reasons" in the judgment and

not fanciful reasons which would permit the Court to impose a sentence

less than the minimum. The reason has not only to be adequate but also

special. What is adequate and special would depend upon several factors

and no strait-jacket formula can be indicated. What is applicable to trial

court regarding recording reasons is equally applicable to the High Court.

Young age of the accused and the fact that he belongs to a Schedule Tribe

were not considered to be either adequate or special for reduction of

sentence in a case under Section 376 of the Indian Penal Code.

Coming to the instant case the learned Counsel for the appellants have

not submitted adequate and special reasons in support of their prayer for

reduction of sentence suffered by the appellants. In State M.P vs.

Phool Chand reported in (2005) 12 SCC 199, it is observed by the

Supreme Court that when the statute provide for minimum punishment

for seven years giving no discretion to reduce the sentence, it is not

possible for the High Court to reduce the period of sentence. In Section

397 of the Indian Penal Code it is stipulated that the punishment shall

not be less than seven years.

Thus, on careful perusal and consideration of the impugned

judgment with the evidence on record and considering the submission

made by the learned Counsels for the appellants and the respondent, I do

not find any infirmity in the impugned judgment.

For the reasons stated above the instant appeal be and the same is

dismissed on contest, however without cost.

The conviction and order of sentence passed by the learned trial

judge in ST No.1(8)2000/SC 56(2) 1999 is affirmed.

Lower court record be sent down to the court below at ones.

A plain copy of this judgment be handed over to the learned

Counsels for the appellants forthwith.

With the disposal of the appeal, connected applications are also

treated to be disposed of.

(Bibek Chaudhuri, J.)