Calcutta High Court (Appellete Side)
Rizwan Ali vs State Of West Bengal on 20 December, 2022
Sl. No. 58-60
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Ajay Kumar Gupta
C.R.A. 676 of 2011
Rizwan Ali
-Vs-
State of West Bengal
With
C.R.A. 392 of 2011
Md. Jamshed
-Vs-
State of West Bengal
With
C.R.A. 600 of 2011
Abdul Gaffar @ Gaiyum
-Vs-
State of West Bengal
For the Appellant
In CRA 676/2011 : Mr. Dipanjan Chatterjee, Adv.
Mrs. Shaila Afrin, Adv.
Ms. Rafat Jahan, Adv.
For the Appellant
In CRA 392/2011 : Mr. Sandipan Ganguly, ld. Sr. Adv.,
Mr. Dipanjan Dutta, Adv.
For the Appellant
In CRA 600/2011 : Mr. Avishek Sinha, Adv.
Mrs. Anasuya Sinha, Adv.
For the State : Mr. Neguive Ahamed, Ld. A.P.P.,
Ms. Faria Hossain, Adv.
Ms. Ayantika Ray, Adv.
Heard on : 12th & 20th December, 2022.
Judgment on : 20th December, 2022.
2
Joymalya Bagchi, J. :-
1.
Appeals are directed against the judgment and order dated
27.05.2011 in S.T. No. 2(9) of 2008 arising out of Sessions Case No.9(8)
of 2009 convicting the appellants for commission of offence punishable
under Sections 392/397 of the Indian Penal Code and sentencing them
to suffer rigorous imprisonment for eight years each and pay fine of
Rs.2,000/- each, in default, to suffer simple imprisonment for five
months each for the offence punishable under Section 392 of the Indian
Penal Code and to suffer rigorous imprisonment for seven years each
and pay fine of Rs. 2,000/- each, in default, to suffer simple
imprisonment for five months more for the offence punishable under
Section 397 of the Indian Penal Code; both the sentences to run
concurrently.
2. At 16.20 hours, one Sourabha Kumar Halder (P.W. 2) came to
Beniapukur Police Station and alleged on 24.05.2008 at 09:10 PM, he
had boarded a Tata Indica car at the crossing of Beckbagan and A.J.C.
Bose Road in order to return to his residence at Karunamoyee, Salt Lake.
He sat on the rear seat between two persons. Another person was sitting
on the front seat. After he boarded the car, it proceeded towards Lady
Brabourne College instead of Bridge No.4. He expressed surprise.
Thereupon the person sitting beside the driver told him he would be
dropped at the appropriate place. Then the car proceeded along Darga
Road and Huges Road crossing via Bridge No. 4. When he raised alarm
the person on his right side pointed a pistol and another on his left side
took out a razor. They slapped him. Thereafter, the persons took
Rs.1000/- from his purse and his mobile phone bearing IMEI No.
359545018103011. Then the vehicle proceeded towards ATM counter of
ICICI Bank situated at Padmapukur. The miscreants forcibly took his
ATM-cum-Debit Card and Shoppers Stop Credit Card bearing No.
2210911500427844. They compelled him to disclose his PIN number.
They withdrew a sum of Rs. 9,000/- from the ATM counter. Thereafter,
they dumped him in front of Don Bosco School and fled away. He
returned home and disclosed the incident to his father. On the next day,
he went to Beniapukur Police Station. S.I. Pratap Biswas (PW21)
attached to Beniapukur Police Station reduced his statements into
writing and Beniapukur Police Station Case No.156 of 2008 dated
25.05.2008 under Sections 392/397 of the Indian Penal Code and
Sections 25(1B)(a) and 27 of the Arms Act was registered for
investigation.
3. During investigation, PW21 took the de-facto complainant to the
place of occurrence. Bikash Chandra Majee (PW1) prepared a rough
sketch map as per the instruction of the de-facto complainant. PW21
made attempts to apprehend the miscreants but failed. On 04.06.2008
investigation was handed over to DD, Lalbazar.
4. PW22, SI Prabir Kumar Saha attached to ADRS Lalbazar took up
the investigation. On the basis of source information, he proceeded to
Ramlila Maidan. He arrested the appellants. From Jamshed, Nokia
mobile phone was recovered. Appellants were remanded to police
custody. Rizwan Ali made a statement (Ext.15) that he would be able to
identify the driver of the vehicle viz., Bhusan Kumar Mondal (PW3) and
the Tata Indica car. Rizwan took the police party to 14, Jogesh Mitra
Road. There he identified Bhusan Kumar Mondal. Bhusan led the police
party to the Indica car bearing registration No. WB 02 0914. The car
along with its papers were seized in presence of the owner Manoj Kumar
Singh (PW5). On the next day, statement of Bhusan Kumar Mondal was
recorded under Section 164 of the Code of Criminal Procedure. On the
leading statement of Abdul Gaffar (Ext.17), ATM-cum-Debit card,
Shoppers Stop credit card and razor were recovered. Md. Jamshed also
made a statement (Ext.16). Pursuant to his statement, a sum of
Rs.600/- was recovered. Rizwan Ali made another statement (Ext.19)
leading to the recovery of Rs. 1500/- and a golden chain from his
residence at Alam Mistry Lane, Howrah.
5. Prayer for T. I. Parade was made on 17.06.2008. PW 12, Syed
Dilwar Hossain conducted T. I. Parade on 27.06.2008. PW2 identified the
appellants in the course of T. I. Parade. In conclusion of investigation,
charge-sheet was filed.
6. Charges were framed under Sections 392/397 of the Indian Penal
Code against the appellants. Appellants pleaded not guilty and claimed
to be tried. Prosecution examined 22 witnesses and exhibited a number
of documents to prove its case.
7. In conclusion of trial, trial Judge by the impugned judgment and
order convicted and sentenced the appellants, as aforesaid.
8. Nobody appears for the appellant viz., Md. Jamshed. Mr. Sandipan
Ganguly, learned Senior Advocate with Mr. Dipanjan Dutta empanelled
with High Court Legal Services Authority are requested to appear on
behalf of the appellant.
9. Learned Advocates for the appellants argues PW2 is an unreliable
witness. No document showing that he was in his office till 9.00 PM was
placed on record. There is delay in lodging first information report. It is
unclear how the witness disclosed the registration mark of the Tata
Indica car during his deposition. He is a tutored witness. It is strongly
argued Bhusan Mondal (PW3) was an accomplice but was cited as a
witness. He deposed under duress. His evidence ought to be discarded.
Identification of the appellants is doubtful. There was delay in holding
Test Identification Parade. Appellants were in police custody and had
been taken out for the purpose of recovery. During T. I. Parade, they told
the Magistrate (PW12) they had been shown to the witnesses in police
custody. Hence, the appeals may be allowed. Recovery of stolen articles
from the appellants have not been proved.
10. In rebuttal, Mr. Neguive Ahamed, learned Additional Public
Prosecutor submits PW2 is the victim and the most natural witness. He
has described the incident in graphic details. Features of the appellants
were disclosed at the earliest opportunity in the FIR. Appellants were
arrested on 05.06.2008. They were taken into police custody till
17.06.2008. Immediately, thereafter prayer was made for T. I. Parade.
There is no delay in holding T. I. Parade. PW2 is corroborated by the
driver (PW3). Submission that PW3 was under police pressure is a
figment of imagination. Recoveries of mobile phone, ATM-cum-Debit
card, Shoppers Stop credit card of the victim, razor and stolen cash on
the leading statements of the appellants have been proved. Hence, the
prosecution case is proved beyond doubt.
11. PW2 is the victim and the de-facto complainant. He has disclosed
the incident in details both in FIR and in Court. He disclosed how he
boarded the vehicle around 9.00 PM at Circus Avenue in order to
proceed to his residence at Karunamoyee, Salt Lake. Failure to produce
documents with regard to his duty hours during trial does not
improbabilise his presence at the place of occurrence. PW2 further stated
the manner in which the appellants who were sitting inside the car
threatened him with a pistol and a razor. They snatched Rs. 1,000/-
from his purse. They also took away his Nokia mobile phone, ATM-cum-
Debit card and Shoppers Stop credit card. He was compelled to give out
his PIN number and the appellants withdrew Rs. 9,000/- from the ATM
counter at Padmapukur.
12. After the incident PW2 was forced out of car in front of Don Bosco
School. He proceeded to his residence and narrated the incident to his
father. On the next day, he went to Beniapukur Police Station and
lodged FIR. PW2 was stunned by the unfortunate incident. Out of fear,
he rushed to his residence at Salt Lake. On the next day, he lodged FIR.
Delay in lodging FIR is explained. Conduct of the witness is most natural
and does not militate against the truthfulness of the prosecution case.
13. PW6, Rajdeep Banerjee corroborated PW2 and deposed there was
an ATM counter at Padmapukur. Evidence has also come on record that
at the relevant time a sum of Rs.9.000/- was withdrawn from the
account maintained by PW2 at ICICI Bank.
14. Version of the de-facto complainant (PW2) is also corroborated by
PW3, driver of the car. He deposed the car was owned by one Manoj
Kumar Singh (PW5), proprietor of M/s. Puspa Travels. He was employed
under Debasish Bose (PW7), Lands down Automobiles. He used to work
as a part time/trainee employee at Puspa Travel. Manoj Kr. Singh had
handed over the car to him for repairs. Appellants met him and
compelled him to drive the vehicle on the fateful night. PW 3's version
finds corroboration not only from his father PW4 (Shatrughna Mandal)
but also from his employer Manoj Kumar Singh (PW5) and Debasish
Bose (PW7). Defence has criticised their versions on the ground that no
documentary evidence with regard to employment of Bhusan Kr. Mondal
under Debasish Bose (PW7) or Manoj Kumar Singh (PW5) has been
produced. One cannot lose sight of the fact that Bhusan was a young
person and was employed on an informal basis under the aforesaid
employers. Under such circumstances, it is unlikely they would maintain
official records with regard to his employment.
15. It is also argued he was an accomplice in the robbery and had
been initially detained by police. His father admitted during cross, he
had gone to Sealdah Court to appoint a lawyer. Defence, however, failed
to adduce any material to show Bhusan had been initially arrested. On
the other hand, PW22 (2nd IO) deposed prayer was made to record his
statement under Section 164 of the Code of Criminal Procedure. This
circumstance wholly improbabilises the defence plea that Bhusan (PW3)
was initially arrested and later on compelled to depose as a prosecution
witness under duress. On the contrary, Bhusan's deposition in Court is
consistent with his earlier statements before Magistrate. Hence, I am of
the opinion Bhusan Mondal is a truthful witness and wholly
corroborates the deposition of the victim, PW2.
16. In addition thereto, recoveries of stolen articles were made from
the appellants. At the time of arrest a black Nokia mobile phone was
recovered from Md. Jamshed. Recovery was made in the presence of
independent witnesses viz., Gopal Shaw (PW8) and Binod Roy (PW9).
Ext.14 produced by PW.16 (Subir Kumar Deb), Assistant Nodal Officer,
Vodaphone shows that the said mobile phone bearing IMEI
No.359545018103011 was used for the SIM card bearing
No.9732518823 which belonged to PW2. This establishes the recovery of
the stolen mobile phone from Md. Jamshed belonged to PW2.
17. On the leading statement of Abdul Gaffar (Exbt. 17), ICICI ATM
cum Debit Card and Shoppers Stop credit card and razor were recovered
from his residence. Recovery was witnessed by Peter Samuel (PW11) and
Md. Kamal (PW19). Ext 13/1 produced by Amit Kr. Lunia (PW15),
manager of ICICI bank proved the ATM Debit Card recovered from Abdul
Gaffar belonged to PW2.
18. Statement of Md. Rizwan (Ext. 15) led to the identification of
Bhusan Kr. Mondal, driver of the vehicle who in turn led the police team
to the Tata Indica car. The car was thereafter seized in presence of its
owner PW15 and other witnesses. Rizwan made a further statement (Ext.
19) leading to recovery of Rs.1500/- and a gold chain. The aforesaid
evidence leading to recovery of stolen articles particularly mobile phone,
ATM debit card, Shoppers Stop card of the victim (PW2) and a razor
clearly proves the prosecution case beyond doubt.
19. In the light of the aforesaid discussion, I uphold the conviction of
the appellants.
20. Coming to the issue of sentence, balancing the aggravating and
mitigating factors, I modify the sentence imposed on the appellants and
direct they shall suffer rigorous imprisonment for seven (7) years and
pay a fine of Rs. 2000/- each, in default to suffer simple imprisonment
for five months each for the offence punishable under section 392 of the
Indian Penal Code. Sentence on the score of section 397 of the Indian
Penal Code remains unaltered. Both the sentences shall run
concurrently.
21. With the aforesaid modification as to sentence, the appeals are
disposed of.
22. 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 section 428 of the Code of
Criminal Procedure.
23. In view of disposal of the appeals, connected applications, if any,
also stand disposed of.
24. Lower court records along with copies of this judgment be sent
down at once to the learned trial Court as well as the Superintendent of
Correctional Home for necessary compliance.
25. Photostat certified copy of this judgment, if applied for, be given to
the parties on priority basis on compliance of all formalities.
I agree.
(Ajay Kumar Gupta, J.) (Joymalya Bagchi, J.)
as/sdas/tamal/PA
