Kamalesh Mondal & Anr vs State Of West Bengal
2021 Latest Caselaw 5880 Cal

Form J(2)
                    In the High Court at Calcutta
                    Criminal Appellate Jurisdiction
                             Appellate Side

Present : The Hon'ble Mr. Justice Bibek Chaudhuri
                            CRA 531 of 2017
                   Kamalesh Mondal & Anr.
                             -Vs.-
                    State of West Bengal
For the appellants      :     Mr. Apurba Kumar Dutta, Adv.,
                              Mr. Kuntal Banerjee, Adv.

For the respondent      :     Mr. Abhra Mukherjee, Adv.,

Mr. Gautam Banerjee, Adv.

Heard & Judgment on :         30.11.2021.

         Bibek Chaudhuri, J.:

It is the cardinal axiom of criminal administration of justice

that prosecution must prove its own case beyond any shadow of

doubt.

In State -Vs.- Krishna reported in (2011) 1 SCC (Cri) 381

it was held by the Supreme Court: -

"In a criminal case, the prosecution case may suffer from

inconsistencies here and discrepancies there, but that is a short

coming from which no criminal case is free. The main thing to be seen

is whether those inconsistencies go to the root of the matter or pertain

to insignificant aspects thereof. In the former case, the defence may

be justified in seeking advantage of incongruities appearing in the

evidence. In the latter, however, no such benefit may be available to

it. Therefore, it is the duty of the Court to separate false from the

truth as in the deposition of witnesses there are always normal

discrepancies, howsoever honest and truthful they may be and these

discrepancies are due to normal errors of observation, normal errors

of memory due to lapse of time, due to mental disposition, shock and

horror at the time of occurrence and threat to the life. In sifting the

evidence, the Court has to attempt to separate chaff from the grains

in every case and this attempt cannot be abandoned on the ground

that the case is baffling unless the evidence is really so confusing or

conflicting that the process cannot reasonably be carried out."

Bearing the above age old and time tested principle of criminal

jurisprudence, let us now examine the evidence on record afresh to

come to a finding as to whether the learned Additional Sessions Judge,

1st Court at Asansol was justified in convicting the accused

persons/appellants for committing offence under Sections

328/379/411 of the Indian Penal Code and sentencing them to suffer

rigorous imprisonment for a period of three years with fine and default

clause each for the offence under the above-stated penal provisions

with a direction that the substantive punishment of imprisonment

would run concurrently.

The case in hand is the revelation of an incident that is very

common to the passengers and travellers by train. In a particular area

starting from southern part of Bihar to Asansol and Durgapur in the

State of West Bengal.

On 31st August, 2009, one Bikash Singh was travelling by 8181

UP Tata Chapra Express in general compartment. After he boarded

the train, 3/ 4 passengers made arrangement for him to sit in the

train. While he was travelling sitting by the side of the said

passengers, they insisted him to take some water. First, he refused.

However, on repeated insistence, he drank water from the bottle of

one of the said passengers at Purulia Station and became senseless.

He regained his senses at Asansol Station and found his bag missing.

He could understand that his co-passengers who insisted him to drink

water mixed some intoxicated drug with the water and after taking

such water, he became senseless. When he was unconscious, the

miscreants fled away taking his bag. He also stated that his bag

contained a sum of Rs.30,000/- and his wearing apparels and medical

receipts and documents. When the train stopped Asansol Station, the

victim rushed to Asansol GRPS and informed the matter to on duty

Police Officer. His complaint was reduced to writing by a Police Officer

and he put his signature thereon. The said complaint was treated as

FIR and Asansol GRPS Case No. 20/2009 dated 01.09.2009 under

Sections 328/307/379/411 of the Indian Penal Code was registered

against three unknown offenders.

After registration of the case, the on duty Police Officer

immediately informed the matter to the RPF Officers posted at Asansol

Railway Station. A raid was conducted inside the general

compartment of the said train as well as on the platform jointly by the

RPF and Police personnel. During raid, Kamalesh Mondal, appellant

no. 1 was apprehended by Police with a black coloured bag in his

possession. The said bag was seized and on search a sum of

Rs.5,000/-, some wearing apparels and one identity card of Bikash

Singh, the de facto complainant and some other materials were

recovered.

Subsequently, on the basis of statement made by Kamalesh

Mondal, two other persons, namely Prabhu Mondal and Dinesh Mondal

were arrested from a hotel at Asansol. From the possession of Prabhu

Mondal, one yellow coloured bag was seized. In the said bag there

were a sum of Rs.5,000/-, some wearing apparels and other articles.

From the possession of Dinesh Mondal, a sum of Rs.5,000/- and a strip

of medicines under the brand name of 'Ativan 2 mg' were recovered.

The accused persons were placed in T.I. Parade during investigation.

They were identified by two witnesses, namely Bikash Singh, the de

facto complainant herein and one Birendra Sahani whose bag was also

stolen allegedly by the accused persons. The materials were seized

and charge-sheet was filed.

It is pertinent to mention here that during trial Dinesh Mondal

absconded and the case was filed against him. Accused Kamalesh

Mondal and Prabhu Mondal faced trial.

During trial, prosecution examined as many as nine witnesses.

Amongst them, P.W. 3, Bikash Singh is the de facto complainant of

this case, P.W. 2, Dr. Satinath Banerjee examined a pack of seized

tablets and opined that the said tablets were 'Ativan 2mg' used as

medicine to induce sleep to the patients suffering from insomnia and

depression. P.W. 1, a hawker of Asansol Railway Station and P.W. 4,

Suman Banerjee, an employee of Asansol Hotel were declared hostile

by the prosecution. It is ascertained from the evidence of P.W. 5,

Anupam Kumar who was posted as Inspector of RPF, on the date of

occurrence that on 01.09.2009 at 2.30 a.m. he received an

information that one bag of a person was stolen from the train by the

miscreants after administering intoxicated drug to him and making

him unconscious. He immediately worked out the said information

with Sub-Inspector, D. Dutta of Asansol GRPS and arrested Kamalesh

Mondal from Asansol platform with a bag. The said bag was seized

under a seizure list where he put his signature as a witness. Then, on

the basis of the statement of Kamalesh, he conducted raid in a hotel at

Asansol and arrested appellant, Prabhu Mondal and Dinesh Mondal

from the said hotel. A bag containing Rs. 5,000/- and some wearing

apparels was seized from Prabhu Mondal and a sum of Rs.5,000/- and

a strip of 'Ativan' tablets were seized from the possession of accused

Dinesh Mondal. Apart from the said witnesses, P.W. 9 was the

Investigating Officer of this case.

It is submitted by the learned Advocate for the appellants that

according to the prosecution case, one bag was stolen from the

possession of the de facto complainant. Though seizure list was

produced and marked exhibits in respect of a bag allegedly seized

from the possession of Kamalesh Mondal, the said seized bag was not

produced during trial of the case. The bag of Birendra Sahani which

was allegedly recovered from accused Prabhu Mondal was also not

produced before the Court during trial. The owners of the said bags

did not have the opportunity to identify during trial that the said bags

as the stolen booty. Therefore, as the prosecution failed to prove the

seized bags with the witnesses, recovery of stolen bags, money and

other articles were doubtful. Secondly, it is submitted by the learned

Advocate for the appellant that in the written complaint as well as

deposition, the de facto complainant stated that he was insisted to

take water from the bottle of the accused persons. On the other hand,

Birendra Sahani was stated that the accused persons gave him a

biscuit to take and after taking the said biscuit, he became senseless.

The Investigating Officer failed to recover the water bottle or the

biscuit unless the said water and biscuit were scientifically examined,

it ought not to have been held that the water bottle and the biscuit

contained intoxicated drugs.

In other words, prosecution failed to prove that 'Ativan' was

mixed with water.

Learned Advocate for the appellant has urged that there was

another way to prove the fact that the de facto complainant became

unconscious after drinking water was by way of medical examination

of the said de facto complainant. However, the Investigating Officer

did not take any attempt to get the de facto complainant examined

medically.

According to the learned Advocate for the appellant, the seizure

lists of this case are extremely doubtful in the event of non-production

of the seized materials.

Learned Public Prosecutor-in-Charge, on the other hand, argues

that there is no infirmity in the Trial Court's judgment and the Trial

Court convicted the appellants on proper appreciation on evidence. It

is further submitted by the learned Public Prosecutor-in-Charge that

during investigation, the accused persons were placed in T.I. Parade.

They were duly identified by the de facto complainant and Birendra

Sahani in T.I. Parade. Therefore, no question can be raised on the

identity of the accused persons as the perpetrator of the offence. The

accused persons were also identified by the victim witnesses in Court.

Identification in Court is of course substantive evidence and when the

identification matches with identification in T.I. Parade, involvement of

the accused cannot be questioned.

Learned Public Prosecutor-in-Charge frankly admits that the

prosecution failed to produce the stolen articles in Court during trial.

But for the failure of the prosecution, trial of the case cannot be said to

be vitiated. The prosecution has been able to prove at least that the

bag of Bikash Kumar Singh was stolen because after the seizure of the

said bag, the same was handed over to him by an order passed by the

learned Magistrate during trial of the case. Thus, he invites this Court

to concur with the judgment made by the Trial Court and pass

necessary order.

Section 328 of the Indian Penal Code is a penal provision for

causing hurt by means of poison etc. with intent to commit an offence.

The ingredients of offence are as follows: -

            (1)    accused administered poison -

            (a)    with the intention of causing hurt;

            (b)    with knowledge that it is likely to cause hurt and

            (c)    to facilitate the commission of an offence.

In the instant case, the prosecution came up with a case of

administration of sedative drug to make the de facto complainant and

another person unconscious to facilitate the commission of theft of the

bags of the de facto complainant and one Birendra Sahani. It appears

from the evidence of P.W.2, Dr. Satinath Banerjee that the strip of

medicines recovered from Dinesh Mondal contained 5/8 'Ativan 2 mg'

tablets. The said tablets are used to induce sleep to the persons

suffering from insomnia and depression. Therefore, the said medicines

is not a poison. Whether the said medicines had poisonous effect upon

a person or not would only be considered after medical examination of

the de facto complainant and Birendra Sahani. But they were not

examined. Therefore, prosecution failed to prove that the water or the

biscuit which the de facto complainant and the said Birendra Shani

were insisted to take were poisonous or not. In the absence of proof

of the ingredient of offence under Section 328 of the Indian Penal

Code, this Court cannot but hold that the prosecution failed to bring

home the charge under Section 328 of the Indian Penal Code.

The purpose of holding T.I. Parade is to enable the witnesses to

identify the suspects who are involved in commission of offence. Its

object is to satisfy the Investigating Authority that a certain person not

previously known to the witnesses was involved in the commission of

crime and also to furnish evidence to corroborate the testimony, which

the witnesses tendered before the Court. Therefore, identification in

T.I. Parade has the corroborative value and it is not a substantive

piece of evidence. It is an undenying fact that the accused persons

were identified in T.I. Parade as well as in Court. But without

production of the stolen articles, the accused persons cannot be

tagged with the stolen materials because different items and articles

were recovered from the possession of three different accused

persons. Under such circumstances, this Court is also not in a position

to hold that the prosecution was able to establish the charge under

Section 379 of the Indian Penal Code.

With regard to charge under Section 411 of the Indian Penal

Code, it was necessary for the prosecution again to hold T.I. Parade of

the stolen Indian currency notes, wearing apparels and other articles.

A sum of Rs.5,000/- can be in possession of any passenger now a

days. But to bring home the charge under Section 411 of the Indian

Penal Code in the instant case, prosecution was under obligation to

prove that the money which was recovered from the accused persons

belonged to Bikash Kumar Singh. The only way to prove the said fact

was by way of holding T.I. Parade of the properties allegedly recovered

from the accused persons. In the instant case, the Investigating

Officer did not take any attempt to hold T.I. Parade of the recovered

properties.

The learned Trial Judge did not make any observation with

regard to the aforesaid fact and without considering the basic

ingredients of offence held the accused persons guilty for committing

offence under Section 411 of the Indian Penal Code.

For the reasons stated above, the impugned judgment and order

of conviction and sentence is liable to be set aside.

Accordingly, the instant appeal is allowed.

The judgment and order of conviction and sentence passed

against the appellants is set aside.

The appellants are discharged from the bail bonds.

A copy of the judgment be sent to the learned Court below

forthwith along with the lower court record.

The parties are at liberty to act on the server copy of this order.

Urgent photostat certified copy of this order, if applied for, be

given to the learned advocates for the parties on usual undertakings.

(Bibek Chaudhuri, J.)

Srimanta/Mithun A.Rs. (Court)