Calcutta High Court (Appellete Side)
Ashique Arafat @ Asiq Arafat & Ors vs The State Of West Bengal on 18 January, 2023
Sl. No.49
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. 526 of 2015
(CRAN 8 of 2022)
Ashique Arafat @ Asiq Arafat & Ors.
-Vs-
The State of West Bengal
For the Appellants : Mr. Moinak Bakshi, Adv.
For the State : Mr. Neguive Ahmed, ld. APP.
Ms. Trina Mitra, Adv.
Heard on : 18.01.2023
Judgment on : 18.01.2023
Joymalya Bagchi, J. :-
1.
Appeal is directed against judgment and order dated 22.06.2015 &
23.06.2015 passed by learned Additional District & Sessions Judge,
2nd Court, Tamluk, Purba Medinipur in Sessions Trial No.87(03) 2004
arising out Sessions Case No. 12(Feb) 2002 convicting the appellants
for commission of offence punishable under Sections 396/412/201
read with Section 34 of the Indian Penal Code and sentencing them
to suffer rigorous imprisonment for ten years and to pay a fine of
Rs.10,000/- each, in default, to suffer simple imprisonment for two
years more for the offence punishable under Section 396 IPC; to
suffer rigorous imprisonment for ten years and to pay a fine of
Rs.5,000/-, in default, to suffer simple imprisonment for one year
more for the offence punishable under Section 412 IPC and to suffer
imprisonment for three years and to pay a fine of Rs.1,000/- in
default, to suffer simple imprisonment for four months more for the
offence punishable under Section 201 IPC. All the sentences to run
concurrently.
2. Prosecution case as alleged against the appellants is to the effect that
on 08.09.2001, Ashique Arafat, Sanjay Sen and Bidyut Dhal @ Bera
hired a TATA Sumo vehicle bearing registration No. WB34F-8262
owned by Uttam Pattanayak (PW7) to go to Digha. Susanta Adak (the
deceased) was the driver of the vehicle. They proceeded to Digha. At
Digha, they halted at Gouri Lodge.
3. On the next day i.e. 09.09.2001 at 04:15 P.M. dead body of Susanta
Adak was seen lying in the Cassurina forest at adjoining Marine
Aquarium at Digha. PW3 noticed the dead body and lodged written
complaint at Digha Police Station resulting in registration of Digha
Police Station Case No.34 of 2001 dated 09.09.2001 under Sections
302/201/34 of the Indian Penal Code.
4. In course of investigation, PWs.18 & 19, police officers attached to
Belda police station apprehended the appellants in the aforesaid
TATA Sumo vehicle. Driving licence of the deceased was recovered
from Ashique Arafat. Appellants were arrested. On the showing of
Ashique, the ligature i.e. gamcha used to strangulate the victim was
recovered. During investigation, Bidyut Dhal @ Bera confessed his
guilt before Magistrate. Witnesses also identified the appellants in
Test Identification Parade.
5. In conclusion of investigation, charge-sheet was filed. Charges were
framed under Sections 396/201/412/34 read with 120B of the
Indian Penal Code. Appellants pleaded not guilty and claimed to be
tried.
6. In course of trial, prosecution examined 22 witnesses and exhibited a
number of documents.
7. In conclusion of trial, learned trial Judge by the impugned judgment
and order dated 22.06.2015 & 23.06.2015 convicted and sentenced
the appellants, as aforesaid.
8. Mr. Moinak Bakshi, learned Advocate for the appellants submits
most of the witnesses have turned hostile. Appellants were shown to
them at the police station. Hence, their identification in court and
during Test Identification Parade is of little substance. Confession of
Bidyut Dhal @ Bera is an exculpatory one. Recovery of the vehicle
and personal belongings of the deceased have not been proved.
Accordingly, he prays for acquittal.
9. Mr. Neguive Ahmed, learned Additional Public Prosecutor submits
Ashique Arafat, Sanjay Sen and Bidyut Dhal @ Bera were identified
by the owner of the vehicle (PW7). PW10 identified Ashique in court.
Admission register of Gouri Lodge shows that the appellants and the
deceased stayed together in the said lodge on the night prior to the
incident. Soon after the incident appellants were found travelling in
the stolen vehicle. Driving licence of the deceased was recovered from
Ashique. Post-mortem doctor (PW21) opined death was due to
strangulation by a rope. The ligature i.e. gamcha was recovered on
the leading statement of Ashique. The aforesaid circumstances are
corroborated by the confession of Bidyut. Hence, the appeal is liable
to be dismissed.
10. I have considered the evidence on record in the light of the
aforesaid submissions.
11. De-facto complainant viz. Sushil Prodhan (PW3) has turned
hostile. PW1 (Kanai Prodhan @ Kanu) and PW2 (Arun Jana) are the
shop owners near Marine Aquarium. None of these witnesses
identified the appellants. They however, admitted a dead body was
found in the adjoining Cassurina forest. The face of the body was
burnt with acid. It is trite law evidence of hostile witnesses need not
be rejected in toto. Distilling their evidence against the anvil of truth,
it is established that the dead body of a male was found on
09.09.2001 around 04:15 P.M. in the Cassurina forest near Marine
Aquarium.
12. Though the face of the body was burnt with acid, brother of the
deceased viz. Tarun Adak (PW6) identified the body as that of
Susanta Adak. Uttam Pattanayak (PW7) proved that Susanta was the
driver of the vehicle and had been hired on 08.09.2001 by 3 persons
to go to Digha. He identified them as Ashique, Sanjay and Bidyut.
PW10 corroborated PW7. He identified Ashique in Court.
13. Mr. Bakshi has challenged identification of the appellants on the
ground that the witnesses had seen them in police lockup. Though
most of the witnesses had turned hostile and even if identification of
PWs.7 & 10 of some of the appellants have been seriously doubted on
the score they had seen the accuseds in police lockup, their presence
at Digha is established through the contemporaneous documentary
evidence namely, hotel register of Gouri Lodge which was seized in
the course of investigation.
14. PW5 (Ganga Rakshit) and PW8 (Tapas Karan) are the employees of
the lodge. Though they failed to identify the appellants in court, PW8
produced the hotel register before the I.O. In the register names and
addresses of the appellants have been recorded showing they had
booked two rooms on 08.08.2001 at 8:00-8:30 P.M. and left the hotel
on the next day at 12 noon. The register was seized by I.O. in the
course of investigation. The witness proved his signature on the
seizure list.
15. PW21 (Dr. Mafezal Hossain) conducted post-mortem over the
body. He found the following injuries :-
"Rigor mortis passed off. Wounds-Superficial acid burn involving whole of
face, upper part of chest, dorsum of left hand and dorsum of left foot. It is
post mortem in nature because no inflammatory change was seen at the
margin of the burn wound. Ligature marks are present. Two continuous
deeply sheeted rope marks are found over throat and neck below thyroid
cartilage. Thyroid cartilage was fractured. "
He opined death was due to asphyxia as a result of strangulation by
rope ante mortem and homicidal in nature. Disfiguration of face by
acid is post mortem in nature. He proved his report (Ext.16).
16. Soon after the registration of FIR notices were sent to
neighbouring police stations to trace out the stolen vehicle. PW18 (SI
Monimoy Singha Roy) was posted as Officer-in-charge, Belda Police
Station. He along with ASI Raj Kumar Ghosh (PW19) apprehended
the vehicle along with the appellants at Keshiary More while it was
coming from Contai side. Driving licence of the deceased, two live
bombs, knives and money were recovered.
17. PW22 (Sudhangshu Sekhar Roy) is the Investigating Officer of the
case. He arrested the appellants. He seized the vehicle and other
articles. On the disclosure statement of Ashique, ligature i.e. gamcha
was recovered. He forwarded Bidyut Dhal @ Bera for recording
confessional statement before Magistrate (PW20). He collected the
statement. He put up the accused persons for Test Identification
Parade. He submitted charge-sheet.
18. Mr. Bakshi contends that the statements of Bidyut Dhal @ Bera
before Magistrate is an exculpatory one.
19. I have examined the said confession. Bidyut does not implicate
himself in the murder. However, he admits his presence and
participation in the theft of the vehicle which was subsequently
recovered. PW20 recorded the confessional statement after giving
necessary warnings to Bidyut Dhal @ Bera. He had also been sent to
jail for reflection.
20. It must be borne in mind that Bidyut has not been charged with
the offence of murder. His confession shows he was a member of the
group of dacoits who committed dacoity and murder. Ingredients of
the aforesaid offences are disclosed in the confessional statement and
the same can be relied on against him.
21. With regard to the other appellants, the confession of Bidyut may
be used to corroborate the other circumstances which establish their
guilt. Presence of other appellants along with Bidyut has been proved
through the hotel register where their names and addresses appear
as occupants. Soon after the murder they were seen together in the
stolen vehicle. Driving licence of the deceased was found in the
possession of one of the appellants viz. Ashique. Ligature i.e. gamcha
was also seized on the showing of the said appellant Bidyut Dhal
@Bera.
22. These circumstances are bolstered by the confession of co-
accused.
23. Hence, conviction and sentence of the appellants are upheld.
24. The appeal is accordingly, dismissed.
25. In view of dismissal of the appeal, connected application being
CRAN 8 of 2022 is also disposed of.
26. Period of detention suffered by the appellants during investigation,
enquiry and trial shall be set off against the substantive sentence
imposed upon him in terms of Section 428 of the Code of Criminal
Procedure.
27. Lower court records along with a copy of this judgment be sent
down at once to the learned trial Court for necessary action.
28. 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.)
akd/as
