Calcutta High Court (Appellete Side)
Bacchu Mir vs State Of West Bengal on 20 September, 2022
Sl. No. 43 to 47
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. 756 of 2012
With
CRAN 5 of 2021
Bacchu Mir
-Vs-
State of West Bengal
With
C.R.A. 52 of 2013
Abdul Sakur Fakir
-Vs-
State of West Bengal
With
C.R.A. 738 of 2012
Totan De @ Totan Dey
-Vs-
State of West Bengal
With
C.R.A. 740 of 2012
Anwar Hossain Fakir
@ Bato Fakir
-Vs-
State of West Bengal
With
C.R.A. 744 of 2012
Bishnu Mondal & Ors.
-Vs-
State of West Bengal
2
For the Appellants
In CRA 756/2012 : Mr. Ayan Basu, Adv.
Sk. Salim, Adv.
Mr. Pritam Roy, Adv.
Mr. Sumit Routh, Adv.
For the Appellants
In CRA 738/2012 : Mr. Sourav Chatterjee, Adv.
Mr. Debapratim Guha, Adv.
Mr. Soumya Nag, Adv.
For the Appellants
In CRA 744/2012 : Mr. Avishek Sinha, Adv.
Ms. Anasuya Sinha, Adv.
For the Appellants
In CRA 52/2013
& CRA 740/2012 : Mr. Ranadeb Sengupta, Adv.
For the State : Mr. Ranabir Roy Chowdhury, Adv.
Mr. Mainak Gupta, Adv.
Heard on : 13.09.2022 & 20.09.2022.
Judgment on: 20.09.2022
Joymalya Bagchi, J. :-
Appeals are directed against the judgment and order dated
10.10.2012
and 11.10.2012 passed by the learned Additional Sessions
Judge, Sealdah, 24-Paraganas South in Sessions Trial No.05(08)07
arising out of Sessions Case No.08(07)07 convicting the appellants for
commission of offence punishable under Sections 395/397/120B/412 of
the Indian Penal Code and read with Sections 25(1B)(1a)/27 of the Arms
Act and sentencing them to suffer rigorous imprisonment for life and to
pay a fine of Rs.5,000/-, in default, to suffer simple imprisonment for six
months for the offence punishable under Sections 395/120B of the
Indian Penal Code, to suffer simple imprisonment for seven years and to
pay a fine of Rs.5,000/-, in default, to suffer simple imprisonment for six
months for the offence punishable under Sections 397/120B of the
Indian Penal Code, to suffer simple imprisonment for seven years and to
pay a fine of Rs.5,000/-, in default, to suffer simple imprisonment for six
months for the offence punishable under Section 412 of the Indian Penal
Code, to suffer simple imprisonment for three years and to pay a fine of
Rs.5,000/-, in default, to suffer simple imprisonment for six months for
the offence punishable under Section 25(1B)(1a)/27 of the Arms Act read
with Section 120B of the Indian Penal Code; all the sentences to run
concurrently.
Prosecution case:-
One Arun Samanta (PW8) is a jeweller. He had a workshop at
1/C, Roy Para Road, Kolkata-50. PWs.3 to 10 used to work in the said
workshop as goldsmiths. On 5.10.2006 Arun Samanta had come to his
workshop. After completing his day's business, he left the workshop. At
about 2.30 PM, one Totan De @ Totan Dey who used to come to the shop
to do "Meena work", came to the workshop and enquired about the
whereabouts of Arun Samanta. Thereafter, he left the workshop. Within
half an hour, four miscreants armed with fire arms and bhojali entered
the workshop and two other miscreants stood outside the workshop.
One of the miscreants who was subsequently identified as Abdul Sakur
Fakir put pistol on the head of (PW3) Gopal Paramanick and snatched a
city gold chain from his neck. Miscreants threatened the workmen to
hand over the gold ornaments. Out of fear the workmen handed over 7
pieces of gold chain, other unfinished gold ornaments and scrap to
them. In course of the dacoity, Jayanta Chatterjee (PW5) was assaulted
by one of the miscreants identified as Bacchu Mir with lei and Paresh
Patra (PW7) was assaulted by another miscreant identified as Md. Aziz @
Raja with the backside of bhojali. Prior to the incident, one of the
workmen Surya Kanta Raha (PW4) had gone out to bring rice. On his
way back to the workshop he found the 'meena worker' viz., Totan De
standing at a three-point crossing near the workshop. He enquired from
Totan where he would go. Thereupon, Totan replied he had some job.
Coming near the workshop PW4 found two of the miscreants sitting on a
red bike. They pushed PW4 inside the workshop. After committing
dacoity all the miscreants left locking the workmen inside the workshop.
PW15, Rajib Kumar Das son of the owner of the premises broke open
the lock and rescued the workmen. Police arrived at the spot. Gopal
Paramanick (PW3) narrated the incident to the police officer which was
reduced into writing and treated as first information report being Sinthi
Police Station Case No.57 of 2006 dated 15.10.2006 under Sections
394/397 of the Indian Penal Code and Sections 25(1B)(1a)/27 of the
Arms Act.
Proceedings before the trial Court:-
In course of investigation, the appellants were arrested. On their
leading statements part of the booty was recovered. They were identified
by the witnesses during T. I. Parade. Charges were framed under
Sections 395/397/120B of the Indian Penal Code and under Section
25(1B)(1a)/27 of the Arms Act against the appellants. In course of trial
prosecution examined 38 witnesses. Defence of the appellants was one
of innocence and false implication. In conclusion of trial, trial judge by
the impugned judgement and order convicted and sentenced the
appellants, as aforesaid. Hence, the present appeal.
Prosecution evidence:-
In order to prove its case, the prosecution examined 38 witnesses
as follows:-
PW Name of witness Role
1 Kajal Monal Plan Maker
2 Swaan Saha Photographer of Lalbazar
3 Gopal Pramanick Defacto-Complainant being worker of workshop
4 Suryakanta Rana Went for bringing rice and on return he was
poured in this workshop.
5 Jayanta Chatterjee Worker got injury with lie from accused Bachhu
Mir.
6 Bappa Das Prior to dacoity he was cleaning utensil in
bathroom and while return met with 4
miscreants who asked for this workshop
7 Paresh Patra Eye-witness & worker who got injury with the
back side of Bhojali from accused Md. Aziz
8 Prashanta Maity Eye-witness & seizure List Witness for Helmet,
Handkerchief, Lei, Padlock and Hammer
9 Soumen Chatterjee Eye-witness, brother of Jayanta Chatterjee and
Seizure List Witness of note book showing job
assignment, mobile of Shambhu Mali & Halmet,
Handkerchief, Lei, Padlock and Hammer
10 Shambhu Mali Eye-witness & worker whose mobile was taken
away by the miscreants
11 Nabin Samui S/L Witness for accused Totan De of De Meena
Works
14 Dinabandhu Ghosh S/L Witness for accused Totan De of De Meena
Works
34 SI Jyoti Prakash S/L Witness for accused Totan De of De Meena
Works & Bishnu Mondal
Dey
12 Iftikar Ahmed S/L Witness for accused Abdul Sakur Fakir
13 SI Amitava Sinha S/L Witness for accused Abdul Sakur Fakir
Roy
20 Md. Tariq S/L Witness for accused Abdul Sakur Fakir
15 Rajib Kumar Das Son of Landlord who rescued worker by
breaking padlock
16 Suresh Kumar Das Landlord of workshop of Arun Samanta
17 Dr. Amal Kr. Kanra Doctor of R.G.Kar Medical College & Hospital
who treated Jayanta Chatterjee and Paresh
Patra
18 Arun Samanta Owner of the workshop
19 Inspector, Prabal Arms Expert
Kr. Chatterjee
21 Babu Goswami S/L Witness for accused Md. Aziz
25 Inspector, Soumya Officer of Beliaghata P.S. who assisted for
Banerjee recovery from Md. Aziz
28 Pradip Bhowmick S/L Witness for accused Md. Aziz
22 Tarak Dey S/L Witness for accused Tarak Malakar
23 Joydeb Dey S/L Witness for accused Tarak Malakar
33 Sankar Shaw S/L Witness for accused Tarak Malakar
24 Bhuba Rajanikant Brother-in-law of Sanjay Patel & Party of
Coimbatore who ordered for gold chains
32 Sanjay Patel Party of Coimbatore who ordered for gold chains
26 Ashoke Sarkar S/L Witness for accused Anwar Hussain Fakir
31 ASI Dipankar Sen Went to Magrahat PS for search & seizure of
accused Anwar Hussain Fakir & Bachhu Mir
35 SI Banamali Witness for production of motor bike relating to
Sandhukhan accused Bachhu Mir
27 SI Ramesh Roy On duty officer who arrived at PO after hearing
Chowdhury the incident from Additional Officer-in-charge,
PS Mukherjee
29 Inspector, Partha Additional Officer-in-charge, PS Mukherjee while
Sarathi Mukherjee petrolling got the information of dacoity
30 Sourav Ld Judicial Magistrate, who hold TI Parade
Bhattacherjee
36 Kausik Banerjee Deputy Manager of CESC who deposed that
there was no loadshading on the day of dacoity
37 SI Dhirendranath Duty officer who went to the PO when received
Kumbhkar information from Additional Officer-in-charge
Sinthi PS
38 SI Supratik IO who received the case on 26.4.2007 and
Bandopadhyyay conducted investigation
Arguments on behalf of the parties:-
Mr. Avishek Sinha, learned Advocate for the appellants Tarak
Malakar, Bisnu Mondal and Md. Aziz @ Raja submits identification of
the appellants by prosecution witnesses is doubtful. Sambhu Malik @
Sambhu Nath Malik (PW10) stated he had been shown the accused
persons at police station. No signature of the witnesses identifying the
appellants appeared in the T. I. parade sheet. T. I. Parade examination
was held seven months after the incident and twenty one days after the
arrest of the appellants. Prosecution witnesses did not describe the
features of the appellants or the roles played by them during TI parade.
With regard to recovery of gold chain and fire arms from his clients, he
contends there was no test identification of the seized articles. No
identification mark was visible on the gold chains which were produced
in Court. Identification of gold chains in Court is not convincing. He
accordingly prayed for acquittal.
Mr. Ayan Basu, learned Advocate for the appellant Bacchu Mir
adopts the submissions of Mr. Sinha with regard to the alleged
irregularities in identification of the appellants during TI parade and in
Court. He further submits no independent witness supported recovery of
gold chain or motor cycle pursuant to the purported statement of his
client. Though Jayanta Chatterjee (PW5) claimed he had been assaulted
by Bacchu Mir, in court the said witness could not recollect the roles of
the appellants.
Mr. Ranadeb Sengupta, learned Advocate for the appellant Abdul
Sakur Fair and Anwar Hossain Fair @ Bato Fakir submits the
identification of his clients was faulty. There was delay in holding T. I.
Parade. Purported recovery of gold chain from Anwar Hossain Fair @
Bato Fakir is not supported by independent witness. He accordingly
prayed for acquittal.
Mr. Sourav Chatterjee, learned Advocate for the appellant Totan
De @ Totan Dey submits none of the witnesses saw him at the workshop
during dacoity. Only PW4 claimed he had seen him at a three point
crossing which is at a five minutes' walking distance from the workshop.
He was not named in the first information report. Recovery from his
possession was made six months after the incident. Hence, there is no
legally admissible evidence connecting him with the dacoity.
In reply, Mr. Ranabir Roy Chowdhury with Mr. Mainak Gupta,
learned Advocates for the State submits the appellants had committed a
daring dacoity in the workshop of PW-18. Four of the miscreants entered
the workshop. They had fire arms and bhojali. Two others kept watch
outside the workshop. Totan Dey who used to come to the workshop as
a 'meena worker' helped the other appellants. He came to the workshop
soon before the incident and enquired about the whereabouts of the
owner. During the incident PW4 saw him standing at a three point
crossing near the workshop. Stolen articles on the leading statement of
the appellants were recovered. Appellants were identified in course of T.
I. Parade as well as in court. Hence, prosecution case is proved beyond
doubt.
Whether prosecution case is proved:-
Analysis of the evidence on record in the backdrop of the rival
submissions show the prosecution case is founded on:-
a) Identification of the appellants
b) Recovery of stolen articles.
(a) Identification of the appellants:
PW30 (Sourav Bhattacharya) conducted test identification parade
of the appellants. From his deposition it appears that test identification
parade was conducted on three dates i.e. 18.05.2007, 19.05.2007 and
04.06.2007. All the suspects are mixed up with similar looking under-
trial prisoners. During test identification parade, PWs 4, 6 and 8
identified Tarak Malakar. They also identified him in court. Similarly,
Bishnu Mondal was identified in course of test identification parade as
well as in court by PW 4. Md. Aziz @ Raja was identified by PWs. 3, 5, 7
and 10 during test identification parade and in court. Abdul Sakur Fakir
was identified by PWs. 3, 4, 5, 6, 7, 9 and 10 during test identification
parade and in court. Anwar Hossain Fakir @ Bato Fakir was identified by
PWs 4,6 and 8 as one of the persons who was sitting outside the
workshop in a motorcycle. Bacchu Mir was identified by PWs. 3, 5, 7, 8,
9 and 10. Toton Dey, meena worker, was identified by PWs. 3, 4, 6, 7, 8,
9 and 10, both in test identification parade as well as in Court. PW 18
(Arun Samanta), owner of the shop also identified Toton and stated he
used to come to the shop regularly for meena work.
Identification of the appellants during test identification parade
has been assailed on various grounds. It is contended there was delay of
more than six months from the date of occurrence and about three
weeks from the arrest of appellants in holding test identification parade.
Identification during test identification parade is not substantive
evidence. It is an exercise undertaken during investigation to corroborate
the identification of an accused in court. There is no hard and fast rule
with regard to the time within which a test identification parade is to be
undertaken. It is desirable such exercise is undertaken at the earliest
opportunity so as to rule out any possibility of false implication. Delayed
test identification parade also has adverse impact on recollective
faculties of a witness.
In the present case, appellants had absconded after the incident.
They could be arrested after a lapse of six months between 26.04.2007
and 01.05.2007. They were taken into police custody for the purpose of
investigation. Prayer was made for their test identification parade.
Pursuant to direction given by the learned Magistrate, test identification
parade was held between 18.05.2007 to 04.06.2007. A number of
witnesses who were present in the workshop attended the test
identification parade and identified the appellants. Due to a large
number of witnesses who attended the test identification parade it was
necessary to hold it on various dates. The aforesaid factual
circumstances show the test identification parade was delayed primarily
due to abscondence of the appellants and was promptly held upon their
arrest. No complaint was raised by the appellants before PW 30 that they
had been shown to the witnesses prior to the test identification parade.
Though it is argued PW 10 claimed he had been shown the accused
persons at the police station, none of the other witnesses stated they had
seen the appellants at the police station. It is also argued the witnesses
had not described the roles or features of the appellants during test
identification parade. Such argument is misconceived. PW 3 (Gopal
Paramanick), the F.I.R. maker, had described the features of the
miscreants in the F.I.R. itself. That apart, the roles of the appellants
graphically stated by the eye-witnesses in Court. The incident occurred
in the afternoon and all the witnesses had ample time to see the
miscreants who committed robbery in the workshop. This naturally
created an enduring impression in their minds with regard to their
identities. Hence, I am of the opinion identification of the appellants by
the witnesses in course of test identification parade as well as in court
does not suffer from any infirmity and can be relied upon.
PWs 3 to 10 have described the roles of the appellants in court.
PWs. 4,6 and 8 stated Tarak Malakar was one of the persons who was
standing outside the workshop. He placed a knife on the waist of the
PWs. 4 and asked the whereabouts of the workshop to PWs. 6 and 8.
Similarly said witnesses stated Anwar Hossain Fakir @ Bato Fakir was
also standing outside the workshop at the time of dacoity and had
enquired from PW 4 where he was going.
Bishnu Mondal, Md. Aziz @ Raja, Abdul Sukur Fakir and Bacchu
Mir were identified as the miscreants who had entered the shop and
committed dacoity.
PW 4 (Surya Kanta Raha) stated Bishu Mondal had put a knife on
his body.
PW 7 (Paresh Patra) stated he had been assaulted by Md. Aziz @
Raja with the backside of bhojali. He was corroborated by PW 3 (Gopal
Pramanick) and PW 9 (Soumen Chatterjee) who stated that the said
appellant had bhojali in his hand.
With regard to Abdul Sakur Fakir (PW 3), the de facto
complainant, stated he brought out a revolver and snatched a chain from
the neck. His version is corroborated by other witnesses.
PW 5 (Jayanta Chatterjee) stated Bachhu Mir assaulted him with
a lei.
All the witnesses stated Toton Dey came to the workshop half an
hour prior to the dacoity and enquired about the whereabouts of the
owner, PW 18 (Arun Samanta). Thereafter he left the workshop and had
been found loitering at three-point crossing near the workshop by PW 4
(Surya Kanta Raha).
Presence of the aforesaid witnesses who have identified the
appellants at the workshop is most natural. They used to work as
goldsmiths under PW 18. PW 18 stated they were present on the fateful
day at the workshop. PW 15 (Rajib Kumar Das), son of the landlord, also
corroborated the presence of the aforesaid witnesses at the place of
occurrence. In course of dacoity PW 5 and PW 7 were assaulted. They
were medically examined by Dr. A. K. Kanra (PW 17) at the R. G. Kar
Medical College and Hospital. These witnesses support the evidence of
PWs. 3 to 7 and establish their presence at the place of occurrence
during dacoity beyond doubt.
(b) Recovery of stolen articles:-
PW 38 is the investigating officer. He deposed he arrested Toton
De, Bacchu Mir, Anwar Hossain Fakir, Md. Aaziz @ Raja and Bishnu
Mondal on 26.4.2007. On the basis of leading statement of Toton De
(Ext 37) a 14" gold chain and a key was recovered. Recovery has been
witnessed by PWs 11, 14 and 34. Bishnu Mondal, Anwar Hossain Fakir
and Abdul Sakur Fakir also made disclosure statements to the I.O being
Ext 27, 43 and 38 respectively. Pursuant to their statements a plastic
container and a gold chain were recovered from Anwar Hossain Fakir. A
maroon coloured jewellery box and gold chain was recovered from Abdul
Sakur Fakir and a gold chain in a plastic box was recovered from
Bishnu Mondal. Similarly on the leading statement of Tarak Malakar
(Ext 39) a gold chain and fire arms with bullets were recovered on
3.5.2007. Md. Aziz @ Raja made a disclosure statement (Ext 41) leading
to the recovery of a bag containing a gold chain. Bacchu Mir made two
disclosure statements. His initial disclosure statement (Ext. 42) lead to
the recovery of a blue coloured velvet box containing gold chain.
Subsequent disclosure statement (Ext. 44) lead to the recovery of a
motor cycle which had already been seized in connection with another
case by PW 35.
It is argued some of the recoveries were not supported by
independent witnesses.
I have gone through evidence of the investigating officer (PW 38)
and the other official witness, i.e., S.I Dipankar Sen (PW 31) who were
present at the time of recovery.
PW 38 Investigating Officer has proved the disclosure statements
of the aforesaid appellants leading to the recovery. Her evidence
regarding recovery is supported by the other official witness, namely, PW
31. Their evidence are clear and convincing and the witnesses remained
unshaken during cross-examination.
I have no reason to disbelieve the evidence of the aforesaid
witnesses which is corroborated by the disclosure statements with
regard to recovery of the gold chains from the said appellants.
It has been strenuously argued the gold chains were not put up
for identification during investigation. No identification mark was noted
on the chains produced in court. Gold chains were identified by the
prosecution witnesses including PWs 3 and 18. PW 3 stated he could
identify the gold chain from its make and identification mark. However,
it was noted no identification mark was visible to the court or the
counsels. Clarifying the position, PW 3 stated the identification mark of
his owner is "LJ4"
PW 3 is a gold smith. In the course of their trade they put minute
identification marks on the ornaments manufactured by them in the
workshop. Such identification marks being unique to the manufacturer
is discernible only to the specialist but not to the lay eye of others.
Identification of the gold chain in court by the goldsmith (PW 3) and the
owner of the workshop (PW 18) is, therefore, more reliable and ought not
to be wished away on the ground that the mark was not visible to the
ordinary eye of the others in Court.
Under such circumstances I am of the opinion recovery of the
stolen articles on the disclosure statements of the appellants as well as
their identification in court has been proved beyond reasonable doubt.
Role of Toton De:-
Coming to the role of Toton De it has been argued he was not
present at the place of occurrence during dacoity. Hence, his conviction
under section 395/120B IPC is unfounded.
All the witnesses stated Toton De, a meena worker, used to come
to their workshop. On the fateful day around 2.30 p.m. he came to the
workshop. He enquired whether the owner of the workshop (PW 18) had
left. Thereafter he left the workshop. Within half an hour the other
appellants came and committed dacoity. At that time PW 4 who had
gone out to bring rice saw Toton loitering at a 3 point crossing near the
workshop. On enquiry as to where he was going, Toton was unable to
give any clear answer. Soon after the incident he absconded with other
appellants and was finally arrested on 26.4.2007. Pursuant to his
disclosure statement a gold chain (a part of the booty) was recovered.
These incriminating circumstances clearly show he was an insider who
provided information to the other appellants to facilitate the dacoity. He
was also a beneficiary of the dacoity and a part of the booty was
recovered from him. Hence I am not inclined to hold culpability of Toton
is any less than the other appellants.
Conclusion:-
In the light of the aforesaid discussion, I uphold the conviction of
the appellants.
With regard to the issue of sentence, I find the appellants have
been awarded the maximum sentence of life imprisonment for the
offence punishable under section 395/120B IPC. They had committed a
daring dacoity in a workshop and had stolen gold ornaments. However,
none of the appellants have prior convictions.
Balancing the aforesaid aggravating and mitigating circumstances,
I consider it prudent to modify the substance sentence imposed on the
appellants and I direct that they shall suffer rigorous imprisonment for
10 years and to pay a fine of Rs. 5,000/- each, in default, for the offence
punishable under sections 395/120B of the Indian Penal Code.
Sentences imposed on them on other count shall remain unaltered. All
the sentences shall run concurrently.
We are informed Bacchu Mir has already undergone 15 years of
actual imprisonment. In the event he deposits the fine amount, he shall
be released from custody if not wanted in any other case.
Bail Bonds of the appellants Tarak Malakar, Bishnu Mondal, Md.
Aziz @ Raja, Abdul Sakur Fakir, Anwar Hossain Fakir @ Bato Fakir and
Toton De @ Toton Dey are cancelled and they are directed to forthwith
surrender and serve out remainder of their sentences, failing which the
trial Court shall issue appropriate process to execute the sentences in
accordance with law.
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.
With the aforesaid modification as to sentence, appeals are
disposed of.
In view of disposal of the appeal, connected applications, if any,
also stand disposed of.
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.
Photostat certified copy of this order, 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/tkm/PA
