Calcutta High Court (Appellete Side)
Ganpat Ram vs The State Of West Bengal on 20 January, 2023
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
C.R.A. No. 154 of 2018
Ganpat Ram
Versus
The State of West Bengal
For the Appellant : Mr. Kallol Mondal, Adv.
: Mr. Krishan Ray, Adv.
: Mr. Souvik Das, Adv.
: Mr. Samsher Ansari, Adv.
For the State : Mr. Sanjoy Bardhan, Adv.
: Mr. Baisakhi Chatterjee, Adv.
Hearing concluded on : January 03, 2023
Judgment on : January 20, 2023
1
Md. Shabbar Rashidi, J.
1. The appeal is directed against the judgment of
conviction dated December 21, 2009 and order of
sentence dated June 19, 2015 passed by the learned 2nd
Additional Sessions Judge, Fast Track Court,
Barrackpore, North 24 Parganas in connection with
Sessions Trial No. 101(12) of 2008 corresponding to
Sessions Case No. 11 (07) of 2008.
2. In course of investigation on the basis of source
information, police arrested some of the miscreants on
February 25, 2008 and o n t he basi s of the statement
made by them some arms and ammunition were
recovered. On April 21, 2008 the appellant Ganpat Ram
along with other accused persons were arrested by the
police and stolen properties and house-breaking
instruments were recovered from their possession as
well. During their custody the accused persons were
interrogated and pursuant to their statements, the
police further recovered other stolen properties, and
house-breaking instruments. Appellant Shisu Pal was
arrested on April 21, 2008 from Badaun, U.P. and
the stolen Samsung Mobile Phone belonging to the de-
facto complainant was recovered from his possession.
The accused persons were put on T.I. Parade and they
were identified by the witnesses.
3. The facts giving rise to the instant appeal, in a
nutshell, is that the de-facto complainant Bimal Das,
the P.W. 1 along with his son Bidyut Das ( P.W. 5),
the daughter Barsha Das ( P.W. 4) and his wife
Chandana Das, used to live together in the third floor of
the premises No. 7, Lenin Sarani, Kanchrapara, within
the jurisdiction of Bijpur Police Station. He was a
jeweler by profession, and his shop room and workshop
were situated in the ground floor of the said premises
itself. One Abhijit Paul (P.W. 2) and Niranjan Paul @
Gosai (P.W. 3) were the employees of de-facto
complainant and they were present in the workshop at
the relevant time. On the fateful night at about 3
hours the de-facto complainant woke up from his
sleep hearing the barking of dogs. Being attracted by
some noises, when he opened the door of his room he
found 5/7 young persons in bermuda pants trying to
break open the collapsible gate of his bedroom. His
wife Chandana Das also woke up with his son Bidyut
Das (P.W. 5).
4. Seeing the dacoits, the de-facto complainant asked
his wife to go to the balcony and seek help from the
neighbours. Being so asked, when his wife, Chandana
Das went to balcony looking for help from the
neighbours, the miscreants who were already hiding
there, threw her down from the verandah when she
identified one of them and called "Surya Tui". Thereafter,
the miscreants entered into the bedroom on the point of
firearms, took the de-facto complainant and his son to
the workshop at the ground floor. They forced the P.W. 2
and P.W. 3 who were inside the workshop to open the
door and on the point of firearms keeping all of them
silent, looted away huge amount of ornaments and cash
from the iron chest. They also snatched the Mobile
Phone from the de-facto complainant and fled away from
the spot.
5. The incident was reported to the police. Police
arrived at the spot and after a written complaint over the
incident, lodged by the de-facto complainant, P.W. 1
Bimal Das, started investigation of the case under
sections 395/396/397/412 of the Indian Penal Code
which ultimately ended in charge sheet against the
appellant and others.
6. Accordingly, on the basis of materials in the case
diary, charges under sections 395/396/397/412 of the
Indian Penal Code were framed against the appellant
and 11 others and they were put on trial for the
aforesaid offences.
7. In order to substantiate the charges, prosecution
examined as many as 34 witnesses. In addition, the
prosecution also relied upon certain documentary and
material evidence adduced at the trial.
8. The de facto complainant himself deposed as PW1.
He stated that he used to reside at no. 7 Lenin Sarani,
Workshop Road, Kachrapara. He had a jewellery shop
under the name and style 'B. Das & Son' situated in the
ground floor of his residence. There was also a workshop
in the ground floor. He further stated that on
21.02.2008 at about 2.00 hrs. at the dawn some 16-17
dacoits broke the collapsible gate and shutter of his
house. PW1 woke up and shouted. Thereafter, he asked
his wife to seek help from the neighbours. She opened
the side door of his house. At that time, 4-5 dacoits were
present in the balcony and threw the wife of PW1 from
the balcony. Thereafter, the docoits entered into his
house with fire arms and placed guns on his shoulder as
well as that of his son. They demanded keys of the shop
and house of PW1 and assaulted PW1 and his son. He
further stated that the dacoits committed dacoity in his
house for about three hours and took up the gold and
silver ornaments, duplicate and cash.
9. Over the incident, PW1 proved his signature on the
written complaint (Exhibit 1).
10. PW1 also stated that there were two arms on
the third floor of his residence. One room was occupied
by PW1, wife and his son where as other room was
occupied by his daughter Barsha Das. He also stated
that on the date of incident his workers Niranjan Paul @
Gosai and Abhijit Paul were present in the workshop on
the ground floor of his house. PW 1 also stated that out
of fear, he handed over the keys to the miscreants.
Thereafter, PW1 and his son were made to take the
miscreants to the workshop on the ground floor. As
asked by the dacoits, PW1 called Niranjan Paul. When
he opened the gate at such call, he was asked by the
miscreants to put on the lights. They entered into the
workshop and opened all the drawers. PW1 was also
made to go into the showroom. Going there, PW1 found
5-7 miscreants standing there and the gate of the
showroom was broken. PW1 was made to put on the
lights of the showroom. The miscreants were wearing
bermuda and Pants and were carrying small lights. They
were talking in Hindi and Bengali. As demanded by the
miscreants to the PW1 handed over the keys of the
chest. The miscreants opened the chest and took away
all the gold and silver ornaments and cash from the
chest in a plastic bag. PW1 also stated that he was
taken to the front of his workshop and was threatened
to be shot if he shouted. The Samsung Mobile Phone of
PW1 and Tata Mobile phone of his wife were also taken
by the miscreants. In his deposition, PW1 also stated
that he saw the faces of sixteen-seventeen dacoits who
committed dacoity in his house. He has also stated that
he identified all the suspects who committed dacoity in
his house in the Test Identification Parade. Besides,
other than suspects, the appellant Ganpat Ram was also
identified by PW1 in the Court as the person whom he
identified in the Test Identification Parade. PW1 also
stated that the gold ornaments sold from his shop bore
the markings as B.D., however no such marking was
given on the silver ornaments. PW1 identified the bag
and the gold of ornaments produced in the Court (MAT
Exbt). I collectively, MAT Exbt. II collectively and MAT
Exbt. III) PW1 also identified the Samsung Mobile Phone
belonging to him, in the Court (MAT Exbt.IV).
11. PW1 was extensively cross-examined on behalf
of the appellant and the other accused persons.
12. The employee of PW1 Abhijit Paul deposed as
PW2. He stated that he was the worker under Bimal Das
in his Jewellery shop under the name and style 'B. Das
& Son'. On 21.02.2008, he was present in the shop
along with the manager Niranjan Paul @ Gosai and
stayed there in the night in the workshop which was
situated on the ground floor of the house of Bimal Das.
PW2 further stated that on 21.02.2008, at about 21.30
hrs. Gosai Paul closed the shop under lock and key and
handed over the keys to Bimal Das. In the night, Bimal
Das knocked the door of the workshop calling 'Gosai!',
'Gosai!'. PW2 and Gosai woke up and opened the door.
Some ten/twelve persons with Bimal Das and his son
Bidyut Das were found in front of the door. The
aforesaid ten/twelve persons had placed one gun each
upon Bimal Das and Bidyut Das. Four-Five persons out
of the aforesaid person entered into the workshop and
damaged the furniture. Upon being threatened by them,
Gosai had to put on the lights in the workshop. Bimal
Das and his son were brought inside the workshop.
They were assaulted by the miscreants with PW2 and
Gosai. PW2 also stated that he heard sounds of breaking
of the shop. Some of the miscreants broke open the shop
from the back of the shop and came inside the
workshop. The miscreants took Bimal Das to the shop
where PW2 and Bidyut Das were confined by them in
the workshop by placing guns near their ears. Gosai
remained in the workshop. PW2 has further stated that
after an hour the dacoits again came inside the
workshop and threatened to shoot if he shouted and
thereafter they fled away. After five/seven minutes,
Bimal Das came inside the workshop and told that the
dacoits had thrown his wife from the third floor. Hearing
this, PW2 along with Bimal Das, Bidyut Das and Gosai
came out of the house and saw the dead body of
Chandana Das lying with bleeding injuries. Bimal Das
started crying seeing the dead body of his wife. On query
by PW2 to Bimal Das told him that his wife could
identify one of the miscreants for which she was
murdered. PW2 also claimed to have seen some of the
dacoits very well with the help of light. PW2 identified
seven suspects at the Test Identification Parade and he
identified the appellant and other accused persons in
the Court as the persons whom he identified in the Test
Indentification Parade.
13. This witness was also cross-examined at length
on behalf of the accused persons.
14. The manager of the de facto complainant
deposed as PW3. He stated that he used to work in the
shop of Bimal Das under the name and style of 'B. Das
& Son' situated at Kachrapara workshop road. The shop
and workshop of the business were situated in the
ground floor of the four storeyed building of Bimal
Das(PW1). PW3 also stated that on 21.02.2008, he was
present in the workshop with another worker Abhijit
Paul (PW2). At about 22.00 hrs. on 21.08.2008, he
closed the shop and gates of the house under lock and
key and handed over the keys over to Bimal Das. At
about 3.00/ 3.30 at the dawn, Bimal Das called him by
saying 'Gosai', 'Gosai'. PW3 woke up and opened the
door of the workshop and saw 10-12 miscreants
together with Bimal Das and his son Bidyut Das in front
of the door. The miscreants had placed guns by the side
of ears of Bimal Das and Bidyut Das. Four/five
miscreants entered into the workshop and asked him to
put on the light. PW3 also stated that thereafter the
miscreants took Bimal Das and his son inside the
workshop and searched the drawers for gold ornaments.
They also broke open the shutter place of the back of the
shop. Bimal Das was dragged with keys to the shop.
PW3 along with Bidyut Das and Abhijit Paul stayed in
the workshop. He also stated that the dacoits were
talking in hindi and Bengali and were wearing Bermuda,
Ganji and some wearing full pant and shirt. Some of
them were tall and some were of short height. According
to PW3, one of the dacoits was like Nepalese and one of
them had cut marks by the side of his left ear. PW3 also
stated that in the light he could see all the miscreants
very well. All of them remained with fire arms. The
dacoits took away gold ornaments from the iron chest
from the shop and silver ornaments from the showroom.
PW3 has also stated that the gold ornaments
manufactured by them bore B.D. Markings. He also
stated that the incident of dacoity continued for about
three hours. Thereafter, Bimal Das came to the
workshop where PW3 and other worker were present
and disclosed that the dacoits had thrown his wife from
the third floor. PW3 along with Bimal Das, Bidyut Das
and Abhijit Paul went out of the house and saw the
blood stained dead body of the wife of Bimal Das. He
further stated that he identified nine accused persons at
the Test Identification Parade. PW3 identified his
signature on the five seizure lists (Exbt. 2, 2/1, 2/2, 2/3
and 2/4). On being asked, the PW3 identified the
present appellant along with the other six accused
persons in the Court as the persons involved in the
incident whom he identified in the Test Identification
Parade and as the persons involved in the incident of the
dacoity.
15. The witness was also cross-examined at length
on behalf of the accused persons.
16. The daughter of the de facto complainant
deposed as PW4. She is a hear-say witness. She stated
that on 21.02.2008, she was reading in her room up till
1.00 a.m. at night. On the following morning at about
5.30 /6.00 hrs. she woke up and her brother started
crying by embracing her. She was told by her brother
that the previous night, dacoits came to their house and
threw her mother from the balcony of the third floor and
due to the said fall, her mother died. She was also told
that her mother could identify one of the dacoits. PW4
was cross-examined on behalf of the accused persons
including the appellant.
17. The son of the de facto complainant was examined
as PW5. He stated in his deposition that on 21.02.2008
a dacoity was committed at his house at about
3.00/3.300 hrs. He went to sleep at about 22.30 hrs and
woke up in the midnight hearing shouts of his parents.
PW5 saw his mother going to balcony. After opening
door, his mother shouted by saying 'Surjo! Tui eki
korchis?' (Surya! What are you doing this?). Then, the
said miscreant threw down the mother of PW5 from the
balcony of third floor. PW5 further stated that thereafter
the miscreant entered into the room and kept guns on
his head and on that of his father. One of those persons
demanded keys from his father. His father handed over
the bunch of keys to the miscreants. PW5 and his father
were taken by the miscreants to the door of the
workshop and asked his father to call the persons inside
the workshop. He has also stated that Gosai and Abhijit
were then present inside the workshop. Being asked, his
father called Gosai to open the door of the workshop.
After opening of the door, the miscreants took the two
hostages inside workshop and asked Gosai to put on the
light. PW5 has also stated that the dacoits kept PW5,
Gosai and Abhijit inside the workshop and took his
father to the showroom. After an hour, the father of PW1
was brought back to the workshop and threatened to kill
them if they shouted. Thereafter, all four went outside
and saw the mother of PW5 lying dead. PW5 also stated
that he attended Test Identification Parade in the jail
and identified three suspects. PW5 identified the present
appellant and others whom he identified at the Test
Identification Parade. He further identified the appellant
and accused Babulal Singh as the persons who threw
his mother from the balcony. PW5 was cross-examined
in extenso on behalf of the accused persons.
18. PW6 is a local witness. He has stated that on
20.02.2008, he along with his friend Nandadulal Yadav
went to Naihati Cinema Hall to watch a movie in the
Night Show. After purchasing tickets, when they were
standing for the show, some eight-ten persons in a
group standing there. The aforesaid persons were
wearing Bermuda, Ganji, shirt and pant and were
talking in Hindi and Bengali. On the following day PW6
came to know about the incident of dacoity and murder
in Kanchrapara. He was interrogated by police. He
identified the appellant Ganpatram and six other
accused persons present in the Court as the persons
whom he identified at the Test Identification Parade and
also claimed to have seen them outside Naihati Cinema
Hall in the evening of 20.02.2008. This witness was
cross-examined by the defence but nothing favourable
could be elicited.
19. PW7 stated that the mother used to run a mobile
phone shop. He identified the receipt issued from the
shop of his mother written by her staff Gobindo Biswas
in respect of the Samsung Mobile Phone. Mobile in the
name of Bimal Das on 14.02.2007(Exbt. 3). PW7 also
identified the mobile handset in the Court. PW7 also
stated that the mobile phone had a system of tracking
through mobile on PW7 and his father. He also stated
that on 04.04.2008 at 08.04 hrs. he received an
emergency message on his phone from a mobile number
of Badayun. He informed the matter to the police.
20. The land lord at whose house the appellant and the
other accused persons took shelter was examined as
PW8. He stated that he had two houses in the same
premises at Dasghara Purbapara. In the front house,
PW8 resided with his family. The other house was let out
on 19.02.2008 to the appellant and seeks others at a
rent of Rs. 1,800/- per month. He took Rs. 5,000/- as
advance and Rs. 1,800/- as advance rent. On
19.02.2008 by issuing a receipt of Rs. 6,800/- , PW8
identified the some of the aforesaid persons in the Court
to whom he let out his premises. He further stated that
being inducted, the aforesaid persons were still residing
in the house from 19.02.2008 but they returned to the
said house on 21.02.2008 at about 9.00/10.00 hrs. PW8
also stated that on 21.04.2008, while the aforesaid
seven persons were still residing in his house appellants
came to his house and took him to the tenanted house.
The tenants were present there. The police seized bags
and gold ornaments from the aforesaid persons. Police
also recovered pipe guns, life cartridges, two mobile
phones and iron cutting blades from the said bags. The
aforesaid articles were seized in presence of PW8 and his
son-in-law, PW8 proved his signature on the two seizure
lists dated 21.04.08 (Exbt. 4 and Exbt. 4/1). He also
claimed to identify the seized articles. PW8 and his son-
in-law also signed on the labels pasted on the attaché
(Exbt 4/2) which was seized by police from the house
under the occupation of his tenants. The attaché was
also identified (MAT Exbt. V). PW8 also proved his
signature on the label attached on the three torches
(Exbt. 4/3) and the torches (MAT Exbt. VI). He also
proved his signature on the labels of the two mobile
phones (Exbt. 4/4 and 4/5) and that of iron cutting
blades (Exbt. 4/6), the iron cutting blades were
identified by PW8 (MAT Exbt. VII). Mobile Phones were
identified as MAT Exbt. 8 collectively and the plastic
bags seized from the possession of the accused persons
were identified by PW8 (Exbt. IX). He also proved his
signature on the label attached to the plastic bags (Exbt.
4/7, 4/8, 4/10, 4/11,4/12) and the plastic bags (MAT
Exbt. X collectively). The witness also identified ten gold-
like Balas (MAT Exbt. XI collectively) and his signature
on the label attached to such balas (Exbt. 4/13). PW8
also proved his signature on the label attached to the
seized articles and gold and silver ornaments (Exbt.
4/14 to 4/44). He also identified the seized materials
which were seized by police from his house tenanted to
the appellant and the other accused persons (MAT Exbt.
XII to MAT Exbt. XXXI), the police visited the tenanted
house of PW8 on a subsequent date i.e. 01.05.2008
along with the present appellant Ganpat Ram and
accused Babulal Singh and recovered several articles.
PW8 also proved the rent receipt issued in favour of the
appellant and the accused persons and the receipt
booked (Exbt. 5/1 and 5 respectively). The witness was
extensively cross-examined on behalf of the appellant
and other accused persons but nothing could be elicited
favourable to the appellant or the other accused
persons. PW10 is the son-in-law of PW8 and the other
witness to the seizure of recovered articles. He has
proved his signature on the labels attached to the seized
articles (Exbt. 4/45 to 4/87). He also identified the
seized articles i.e. attaché, bags, gold and silver
ornaments, torches and the house breaking tools,
already admitted in evidence at the behest of PW8.
21. PW10 also proved his signature on the bag of the
rent receipt book (Exbt. 4/88 and his signatures on the
seizure lists dated 01.05.2008 (Exbt. 4/87, 4/89
respectively).
22. PW11 is a drafts man, he prepared sketch map as
per the index prepared by the appellant. He proved the
sketch map prepared in his pen and signature (Exbt. 7).
23. The autopsy surgeon had conducted post-mortem
on the dead body of the victim Chandana Das on
21.02.2008 deposed as PW12. He has stated that he
conducted post mortem on the dead body of Chandana
Das in connection with Bijpur P.S. U.D. Case No. 7dated
21.02.2008 corresponding to Bijpur P.S. Case No. 32
dated 21.02.2008. On examination, he found the
following injuries on her person:
1. A lacerated wound measuring 4 ½" X 3"
bone, ¼" above the right eyebrow, 1" to the
right of the middle.
2. A lacerated wound measuring about
1"X1/2" X bone, 1" above the left eyebrow.
3. bruise on the right eyebrow measuring
abouit 1 ¼" X 1".
4. abrasion measuring 1" X ½" on the
chin in the mid line .
5. a diffused boggy swelling measuring
about 5" X 4" on the back of the scalp.
6. an abrasion measuring 8" X 5" on the
right memory region measuring 2" to the
right of the midline.
7. abrasion measuring 7" X 4" on the left
memory region measuring 2" to the left of
the midline.
8. abrasion measuring 6"4" on the right
side of the abdominal wall touching the
midline measuring 10 ½" about the right
iliac (sic) crest.
9. an old scar measuring about 7"x2"
longitudinally disposed in the midline
measuring 1" below the umbilicus.
10. an old scar transversely disposed
measuring 6" extending 3" to the right and
left of the midline 1" above the symphysis
pubis (sic).
11. a bruise measuring 6 1/2"x 2 1/2"x 2"
above the left elbow joint on the lateral
aspect of the left arm.
12. abrasion measuring 7" x 3 ½'' on the
lateral aspect on the right arm with a
lacerated wound measuring 1"x 1" bone
measuring 2 ½" below the shoulder joint
with a fracture or shaft of the humerus on
the right side.
13. abrasion measuring 1"x ½" on the basis
of the right great toe with multiple
abrasions measuring ¼" x ¼" on the bases
of other toes.
14. abrasion measuring ½"x ½" on the left
dorsum of the foot with a bruise measuring
2" x 2".
15. a bruise measuring 2" x 1" on the
dorsum of the left hand with fracture of
lower ends of both radius and ulna.
16. a bruise measuring 4" x 3" on the right
flank touching the right iliac (torn)
measuring 7" to the right of the midline.
17. abrasions measuring 2 2/1" x 1"x ½"
lateral to the previous injury.
On dissection, he found the following injuries:
1. Fracture of the right clavicle with fracture
of all the ribs on the right side.
2. Fracture of both pelvic bones.
3. A lacerated wound measuring 2" x 1" on the
posterior lobe of the liver.
4. A bruise measuring 2 ½" x ½" present in
the anterior aspect of the intestine
involving jejunum.
5. Fracture of the 6th and 7th survical vertebra.
6. A bruise measuring 2" x 1" present on the
posterior surface of the right kidney.
7. Presence of about 1 to 1.5 litres of blood in
the peritoneum cavity.
8. Extra vassation of blood in the layers of
the scalp measuring 4" x 2" on the left
fronted and parietal regions measuring 3" x
4"x 2" on the right frontal and parietal
areas.
9. Depressed commuted fracture measuring
2"x2" involving the frontal bone.
10. Diffused extra vassations of blood in
the subdural space involving all the lobes of
the brain.
11. Longitudinal fractures involving the
anterior and middle cranial fossa including
fracture of the nasal bones.
24. He further stated that as per his opinion, it was due
to the effect of injuries as noted in the post-mortem
report which were ante-mortem in nature. He tendered
the post mortem report prepared in his pen (Exbt. 8). He
further opined that the injuries noted in the post-
mortem could have been informed if the deceased was
thrown from the top of the information building force
and it was unlikely that such injuries will be received if
the victim fell accidentally from the top. PW12
categorically stating that the injuries noted in the post-
mortem were homicidal in nature.
25. PW13 was an employee of the SDO office,
Barrackpore. He has proved the sanction order issued
by the then District Magistrate, Binod Kumar (Exbt. 9).
26. The scribe of the written complaint deposed as
PW14. He has stated that he wrote the written complaint
as per the instruction of Bimal Das when he visited his
house hearing the news of a dacoity at his house. The
written complaint was read over and explained to the de
facto complainant whereupon he signed on it. PW14
proved the written complaint (Exbt 1/1).
27. PW15 is a neighbour of the de facto complainant.
He has stated on 21.02.2008, there was an incident of
dacoity at the house of Bimal Das and his wife was
thrown down by the miscreants. Ornaments were stolen
away in the incident. Police visited the place of
occurrence and seized certain articles under seizure
lists. PW15 proved his signatures on the five seizure lists
prepared on 21.02.2008 (Exbt. 2/5, 2/6, 2/7, 2/8, and
2/9). PW15 also stated that Bimal Das purchased a
mobile phone from the shop of his wife and the said
mobile phone was equipped with a tracker system. In
the month of April 2008, one message was received by
PW15 and his son.
28. PW16 is a co-villager of accused Srikanta Dey. He
stated that after arrest when accused Srikanta Dey was
taken to the shop of Shankha Jewellers, PW 16 was
called upon by the police. He proved his signature on
the seizure lists dated 27.04.2008 (Exbt. 10). This
witness was declared as hostile by the prosecution. He
denied having made any comment regarding the
recovery and seizure of bag with gold ornaments from
the possession of the said accused before the Police.
29. The brother of accused Srikanta Dey deposed as
PW17. He stated that his brother Srikanta Dey used to
run a jewellery shop under the name and style 'Shankha
Jewellers' at his village Pacha. His brother was arrested
by the police. PW17 proved his signature on the seizure
list dated 27.04.2008 (Exbt. 10/3) and that of his
brother Srikanta Dey thereon (Exbt. 10/4). PW 17 was
also declared hostile by the prosecution. In his cross-
examination on behalf of the prosecution, PW17
admitted the signature of his brother Srikanta Dey on
his memo of arrest dated 23.04.2008 (Exbt. 10/5 and
10/6). He further admitted that he along with the
witness Tarun Paul, Saktinath Das and his brother
Srikanta Dey signed on the seizure list. PW17 denied
having made any statement before the police. PW17
further proved his signatures on the labels attached to
the recovered articles (Exbt. 10/7 and 10/8) and the
signatures of the accused Srikanta Dey (Exbt. 10/9 AND
10/10).
30. PW 18 was a vegetable seller. He proved his
signature on the seizure list dated 25.02.2008 (Exbt.
11). PW18 further stated that on one Surya was
apprehended by police near Khalpara. The said Surya
brought out one rifle, mobile: Nokia Phone, cartridge,
Sabol, rod from inside the Khal kept in a black plastic
and handed over to the police. Police seized the same
and he along with others signed in seizure list. PW18
also proved the aforesaid belt(MAT Exbt. XXXII), sabol,
wrench and iron rods (MAT Exbt. XXXIII collectively).
31. PW19 also proved his signature on the seizure list
dated 25.02.2008(Exbt. 12) whereby iron rods, one arms
were recovered from the possession of accused Babar
Ali.
32. The arms expert was examined as PW20. He stated
that sixteen sealed packets of arms and ammunition
seized in connection with Bijpur P.S. Case No. 32 dated
21.02.2008 was received by his office for examination.
He assigned markings on the said packets. He examined
the said fire arms and identified the same in Court and
found the same to be in working condition. He has
tendered his reports (Exbt. 13,13/1) and identified the
fire arms and ammunition (MAT Exbt. Xxxiv to MAT
Exbt. LIV). He also proved his signatures on the labels
attached to such articles (Exbt. 14 to 14/20).
33. PW21 is another person who was going to watch a
movie in the Naihati Cinema Hall on 20.02.2008 in the
night. He has stated that he saw eight/ten persons
standing there and were talking in Hindi and Bengali.
They were wearing bermuda Pant and ganji and some of
them wearing pant and shirt. They were talking in a
suspicious way. On the next day, he heard about the
dacoity in jewellery shop at Kanchrapara. He further
stated that on 30.04.2008 and 02.05.2008 he went to
Barrackpur Jail for T.I. Parade. On 30.04.2008, he
identified the three accused persons as the persons
standing near the cinema hall and on 02.05.2008, he
identified one suspect.
34. PW22 proved his signature on the seizure list dated
02.05.2008 (Exbt. 15).
35. One local person was examined as PW23. He stated
that in the night of 21.02.2008, there was a dacoity in
the house of Bimal Das. On the following morning, at
about 6.00 hrs. on 21.02.2008, he went there and saw
the dead body of the wife of Bimal Das lying on the
road. He was reported by Bimal Das that his wife was
thrown away by the dacoits from the third floor of his
house.
36. PW24 is the bench clerk of Judicial Magistrate, 3rd
Court, Barrackpore. She has proved the T.I. Parade
sheets dated 30.07.2008 and 02.05.2008 and
05.05.2008 prepared in the pen and signature of
Judicial Magistrate Nachiketa Bera (Exbts. 16, 16/1&
16/2 respectively) and his signature thereon.
37. The Inspector in-charge of Bijpur P.S. deposed as
PW25. He stated that on 21.02.2008, at about
6.30/7.00 hrs. he was informed by one person at his
quarter that there was a dacoity in the house of Bimal
Das at Lenin Sarani. He came back to his wife, collected
the force and after lodging G.D.E. No. 1221 dated
21.02.2008. He proceeded to the place of occurrence.
The matter was also informed to R.T. Officer S.I. Mankik
Chakraborty who also went to the place of occurrence.
PW25 received written complaint from Bimal Das upon
endorsement of receipt thereon (Exbt.1/2). He then sent
the written complaint for lodging an FIR and endorsing
the investigation to one S.I. Manirul Islam. PW25 proved
his signature on the formal FIR (Exbt. 17).
38. PW26 received the written complaint sent by the
Inspector-in-charge for endorsing his receipt thereon
(Exbt. 1/3). PW26 started the case by filing a formal FIR
being Bijpur P.S. Case No. 32 dated 21.02.2008. He
proved the formal FIR (Exbt. 17/1). PW26 also stated
that he accompanied the investigating Officer in the case
to Lucknow, Uttar Pradesh and accompanied by Special
Task Force, Lucknow, to District Badayun and arrested
one accused. He also proved his signature on the seizure
list dated 21.04.2008 (Exbt. 18/3).
39. PW28 carried the dead body to the police morgue
under dead body challan bearing his signature (Exbt.
20). PW28 also proved his signature on the seizure list
through which wearing apparels of the deceased were
seized (Exbt. 21).
40. PW29 proved his signature on the seizure list dated
21.02.2008 (Exbt. 21/1).
41. PW30 proved his signature on the seizure list dated
21.02.2008 through which the wearing apparels and
viscera of the deceased were seized (Ext. 21/2).
42. Another police personnel has deposed as PW31. He
stated that on 21.02.2008, at about 6.00 hrs. as per the
direction of the inspector-in-charge, he went to the
house of the deceased Chandana Das lying ten/12 feet
from the back side of the house. PW31 conducted
inquest on the dead body. He proved the inquest report
prepared in his pen and signature (Exbt. 22). Thereafter,
he sent the dead body under the challan through
constable Rajan Shaw for post mortem examination. He
proved the dead body challan (Exbt. 20/1). PW 31 has
also stated that as per the leading statement of one of
the accused persons, he accompanied the investigating
officer to a rented house and recovered gold ornaments
which were seized by the investigating officer. PW31
proved his signature on the seizure list dated
01.05.2008 (Exbt.4/90) and the labels attached to the
recovered articles (Exbt. 4/91 to 4/98). PW31 also
identified the recovered articles already admitted in his
evidence as MAT Exbt. II collectively and Exbt. 28). He
proved his signature on the label attached to the plastic
packets (Exbt. 4/99), that attached to the seized wearing
apparels of the accused persons (Exbt. 4/100).
43. First investigating officer deposed as PW32. He
stated that he accompanied the inspector-in-charge
Sibkumar Banerjee to the house of Bimal Das at Lenin
Sarani, Kachrapara. He was endorsed with the
investigation of the case. In the course of investigation,
he examined the available witnesses including further
statement of the de facto complainant. The sniffer dogs,
finger print experts also collected evidence. He also
prepared sketch map of the place of occurrence (Exbt.
7/1) with indices (Exbt. 23, 23/1). The investigating
officer also seized certain articles like three padlocks,
moneybag etc. from the place of occurrence under a
seizure list (Exbt. 55) and packets of Biri (Exbt. 57). He
also proved the map found from inside the money bag
indicating the place of occurrence (Exbt. 56), a paper
containing some mobile numbers as well as a photo of
Ma Kali found from inside the money bag (Exbt. 58).
PW32 also seized certain other articles like currency
note, paper cutting etc. (Exbt. 59 to 64). He also proved
seizure list dated 21.02.2008(Exbt. 2/10). Thereafter,
the investigating officer proceeded to the jewellery shop
and workshop of the de facto complainant situated on
the ground floor and seized certain articles under four
separate seizure lists prepared on 21.02.2008
(exbt. 2/11,2/12,2/13 and 2/14). He further proved the
Zimmanama through which the seized ornaments were
handed over to the de facto complainant (Exbt. 24). He
further examined the seizure list witnesses and recorded
their statement. The seized articles were handed over to
th Malkhana officer. PW32 also proved the seizure list
dated 21.02.2008 through which the wearing apparels
and viscera of the deceased were seized (Exbt. 21/3). On
25.02.2008, PW32 recovered fire arms and ammunition
from some of the accused persons which were seized. He
also proved the relevant portion of the statement of the
accused recorded by him leading to recover of the fire
arms (Exbt. 25 and 25/1, and 25/4). PW32 also
recovered the alleged stolen particulars as per the
statement leading to recovery made by the accused
persons. He proved the seizure list dated
23.02.2008(Exbt. 11/1).
44. Inspector-in-charge deposed as PW33. In course of
his part of investigation, he arrested accused Shisu Pal
for whose statement he came to know the name of the
present appellant and others involved in the incident of
the dacoity. He also proved the G.D.E., seizure list and
relevant portion of the statement of the accused persons
leading to recovery of stolen articles, mobile phone and
fire arms.
45. On completion of investigation, PW33 submitted
charge sheet against the fifteen accused persons under
Sections 395/397/396/412 of the Indian Penal Code.
46. The judicial magistrate was examined as PW34. He
conducted the T.I. Parade and proved his reports (Exbt.
16/3 and 16/4). By his report dated 05.05.2008 (Exbt.
16/5) present appellant Ganpatram was identified by
the witnesses.
47. On the termination of the evidence on behalf of the
prosecution, the appellant and the other accused
persons were examined under section 313 of the Code of
Criminal Procedure. The appellant did not make out a
positive case of defence on his behalf, in such
examination, rather, pleaded his innocence.
48. At the conclusion of the trial, the appellant along
with 14 other accused persons were found guilty by the
learned trial court and were convicted of the offence
punishable under Section 395/396/412 of the Indian
Penal Code.
49. However, after his conviction and hearing, on the
point of sentence, on 22.12.2012, the appellant fled
away from the custody, with another accused, on his
way to Dumdum Central Correctional Home, from the
court. For which, no order of sentence could be passed
against the appellant. He was later on produced before
the learned Sessions Court convicting him, on
16.4.2015. Accordingly, the order of sentence as against
the present appellant was passed 19.6.2015.
50. By the impugned order of sentence, the appellant
was sentenced to suffer rigorous imprisonment for life
and to pay a fine of Rs. 5,000/- and in default o f
payment of fine to suffer further rigorous
imprisonment for one year for the offence punishable
under Section 396 of the Indian Penal Code.
51. He was also sentenced to suffer rigorous
imprisonment for life and to pay a fine of Rs. 5,000/-
and in default o f payment o f f i n e to suffer further
rigorous imprisonment for one year for the offence
punishable under Section 395 of the Indian Penal Code.
52. The appellant was also sentenced to suffer Rigorous
Imprisonment for 7 (seven) years for the offences
punishable under section 395/397 of the Indian Penal
Code.
53. The appellant was also sentenced to suffer rigorous
imprisonment for life and to pay a fine of Rs. 5000/- and
in default of payment of fine to undergo rigorous
imprisonment for a further period of 1 (one) year for the
offence punishable under section 412 of the said Code.
54. All the sentences were directed to run concurrently.
55. In course of investigation on the basis of source
information, police arrested some of the miscreants on
February 25, 2008 and o n the basi s of the statement
made by them some arms and ammunition were
recovered. On April 21, 2008 the appellant Ganptram
along with other accused persons was arrested by the
police and stolen properties and house-breaking
instruments were recovered from their possessions.
During their custody the accused persons were
interrogated and pursuant to their statements, the police
further recovered other stolen properties, and house-
breaking instruments. Appellant Shisu Pal was arrested
on April 21, 2008 from Badaun, U.P. and the stolen
Samsung Mobile Phone belonging to the de-facto
complainant was recovered from his possession. The
accused persons were put on T.I. Parade and they were
identified by the witnesses.
56. At the time of advancing arguments, it was
contended by learned advocate for the appellant that the
written complaint of Bimal Das ought not to have been
treated as the First Information Report in the case and
admitted in evidence (Exhibit - 1). It is submitted that
such complaint was made after the investigation had
already commenced with the conduct of inquest over the
dead body of the victim. Such investigation had started
on the basis of a telephonic message received by PW 25.
57. It is also submitted that the G.D.E disclosed that a
lady had died falling from the verandah, the prosecution
case that she was killed by the miscreants by throwing
her down, is a clear embellishment. Moreover, according
to the de-facto complainant, soon after the incident
of dacoity, his neighbors had informed the police over
phone, but, the police witnesses have not testified
receipt of any such information. For the aforesaid
reasons, the case of the prosecution cannot be relied
upon.
58. Besides, it has been contended that the testimony
of the de-facto complainant (PW1) contains material
contradictions in so far as he first stated that he woke
up due to noise made by the miscreants while they were
in the process of breaking open the collapsible gate but
later he stated that he woke up hearing barking dogs.
Apart from that, it has been submitted, that the neither
the stock register maintained by the de-facto
complainant was checked and verified in reference to the
available stock of gold bars and ornaments nor the
alleged articles claimed to be looted away were not
sealed or bore proper genuine markings. Such facts
render his deposition highly unreliable in reference to
the quantity of stolen articles. Moreover, the recovered
articles were claimed by PW1 to bear the embossed mark
of his company however, no stamp etc. was seized by the
investigating officer, which, according to learned
advocate for the appellant, raises doubts. It was also
pointed out that according to the PW1 the dacoits
entered in his flat by breaking open a collapsible gate
situated at the entrance of their flat but no part of
broken collapsible gate was either seized by police nor
any photographs showing broken gate was brought on
record during the trial, in support of his claim. On the
other hand, P.W. 3 Niranjan Paul, an employee of the
said PW1 has altogether denied the very existence of
any such collapsible gate. PW1 also did not arrange for
medical treatment of his wife. When his wife was
removed by the locals, the de-facto complainant did not
accompany her rather he remained at his house. Such
conduct on the part of the de-facto complainant is quite
unnatural raising genuine doubts regarding the veracity
of his testimony. It has also been argued that the de-
facto complainant is an illegal migrant from East
Pakistan and has been able to set up a business of
considerable size. This shows that he has some roots in
the local authorities. The instant case was initiated with
the connivance of said authorities in order to shield
mysterious death of his wife under the garb of dacoity.
59. Besides that the appellant seeks to assail the
impugned judgment and order on the grounds that the
place of occurrence ought to have sealed but the same
was not done leaving the possibility of any third party
intervention. The stock register, stamp, molds or
imprints were also not seized by the investigating officer.
The investigation was done in a shoddy manner.
Accused persons were telecasted over media leading to a
possibility that they were identified by the witnesses
prior to them being place on Test Identification Parade.
60. On the other hand, the learned advocate for the
State submitted that the case against the appellant has
been proved beyond any iota of doubt. It is further
submitted the prosecution, on the basis of convincing
evidence has been able to prove that a dacoity was
committed at the residence of P.W. 1 Bimal Das and
in course of such dacoity the wife of the de-facto
complainant was killed and the ornaments were looted
away from the shop as well as the workshop of the de-
facto complainant. There are no material contradictions
in the evidence of witnesses.
61. It is further submitted that the appellant was
identified in the T.I. Parade held before the Judicial
Magistrate. He was also sufficiently identified in Court,
therefore the participation of the appellant in the
commission of the dacoity has been amply proved
beyond any shadow of doubt.
62. It was further contended that in addition to his
identification as the perpetrator in the commission of
dacoity, the stolen properties were also recovered from
the custody of the accused persons, which clearly
points to his involvement. As such according to the
learned advocate for the State, the judgment of
conviction and order of sentence passed by the learned
trial court is well founded based on the basis of cogent
and convincing evidence and deserves to be affirmed.
63. So far as the contention of the appellant regarding
inadmissibility of the First Information Report, the same
being hit by the provisions of section 162 of the Code of
Criminal Procedure is concerned, it has come out from
the evidence on record that in the present case the First
Information Report, was lodged after holding of inquest
over the dead body of the deceased.
64. The evidence on record goes to show that P.W. 31
was informed by the I.C. Bijpur police station regarding
a dacoity and murder in the house of P.W. 1 Bimal Das.
He was asked to move to the place of occurrence, he
rushed there and upon finding the dead body, he held
inquest. However, before proceeding to the spot no such
information was reduced into writing. It also transpires
that P.W. 25 I.C. Bijpur re ce ived information from an
unknown person at his quarter about the incident.
Receiving such information, he went to the police
station, recorded a G.D.E in this regard and then he
proceeded to the spot.
65. The contents of the said G.D.E, shows a short
message about an alleged incident. It could be treated as
an official entry justifying the presence of PW31 at the
place of occurrence. A First Information Report is
required contain facts which discloses commission of a
cognizable offence.
66. The acts on the part of PW31 in arriving at the
place of occurrence upon receipt of an information of the
commission of a cognizable offence, without any First
Information Report formally registered and even without
being entrusted with the investigation by the superior
officer, can at best, be construed as an irregularity
which does not render the First Information Report
lodged subsequently, inadmissible in evidence. In any
case, the First Information Report lodged by PW1 does
not come within the purview of section 161 of the
Criminal Procedure Code to render it inadmissible in
terms of the provisions of section 162 of the said Code.
Moreover, the statements of PW1, PW25 and PW31
recorded at the trial, sufficiently discloses the
commission of a cognizable offence. Accordingly, we do
not find much force in the argument on behalf of the
appellant that the First Information Report lodged in the
case has no probative value.
67. The contention on the part of appellant that no
broken part of collapsible gate etc., were seized by the
police or any photograph of the broken gates were
brought on record tells upon the credibility of the
prosecution case. Three broken padlocks with the loop
cut and other articles from the place of occurrence were
seized and produced at the trial. The front portions of
those padlocks were found to be cut instruments.
House-breaking instruments, like hacksaw blades, metal
cutting instruments, iron rods, sabls, wrench, sindkathi,
etc. were seized in course of investigation. Such an
omission or non production of broken collapsible gate
etc. is not sufficient to destroy the prosecution case. On
the contrary, the evidence of PW1, PW2, PW3 and other
witnesses is quite explicit regarding the commission of
offence. They all have identified the appellant and other
accused persons in the TI Parade as well as at the trial
as the perpetrators with sufficient clarity.
68. The question of PW1 being a foreigner and having
illegal residence in India is of no consequence in the
facts and circumstances of the case. No positive evidence
is forthcoming to establish that the de-facto
complainant, taking advantage of his connections with
the authorities, has shielded the unnatural death of his
wife in the garb of dacoity. On the other hand, the
prosecution, with the help of convincing evidence has
been able to prove that there was an incident of dacoity
at the house of de-facto complainant. The miscreants
came to his house, threw down his wife, caught the de-
facto complainant and his employees at ransom and
looted away valuable articles from his shop-room and
workshop. The miscreants along with the present
appellant were identified at the Test Identification Parade
conducted in course of investigation and also at the trial
as the member of the gang of dacoits. The stolen articles
were recovered and identified as such, at the trial. Such
identification, either of the miscreants including the
appellant or of the stolen articles could not be shaken
during the trial.
69. P.W. 1 Bimal Das, P.W. 2 Abhijit Paul, P.W. 3
Niranjan Paul and P.W. 5 Bidyut Das, who were
extensively cross-examined by the defence. The evidence
of aforesaid witnesses, leaves have no doubt that the
prosecution has been able to establish at the trial that
there was an incident of dacoity on February 21, 2008
at the residence of P.W.1 Bimal Das. The dacoits at the
point of firearms looted away various valuable articles,
viz., gold and silver ornaments from the shop and
workshop of the de-facto complainant. The wife of the
de-facto complainant was killed. The evidence on record
points to the only proposition of guilt of miscreants
including the appellant On the other hand, the defence
in spite of cross-examined the witnesses at length has
miserably failed to create any doubt regarding
involvement of the appellant and other accused persons
in the incident. We have also no doubt that at the time of
the commission of the dacoity, the P.W. 1 Bimal Das,
P.W. 2 Abhijit Paul, P.W. 3 Niranjan Paul and P.W. 5
Bidyut Das were very much present at the place of
occurrence and they are the eyewitnesses of the said
incident.
70. The testimony of the postmortem doctor (PW12),
discloses that if the deceased was thrown away from the
top of the building or thrown away by applying force
from the top of the building she might received the
injuries as mentioned in the Postmortem Report and it
was unlikely that the deceased would receive such
injuries if she fell accidentally from the top. In his
extensive cross- examination by the defence, nothing
could be elicited rendering his evidence untrustworthy.
Thus medical evidence do establishes that deceased
suffered a homicidal death which was caused in course
of and in order to facilitate the commission of a dacoity.
71. So far as the involvement of the appellant in the
incident is concerned, it is the case of the
prosecution that the miscreants who committed
dacoity at the residence of the P.W. 1 Bimal Das were
not known to the witnesses f r o m before and its case
entirely rests on the evidence of P.W. 1 Bimal Das,
P.W. 2 Abhijit Paul, P.W. 3 Niranjan Paul and P.W. 5
Bidyut Das who were present at the place of occurrence
during the incident and identified them during
investigation, in the T.I. Parade and in the Court, during
trial and the stolen articles were recovered from their
possession. It was also urged that the T.I. Parade was
held long after the arrest of the appellant and before
T.I. Parade he was shown to the witnesses.
72. From the evidence of P.W. 1 Bimal Das, it
transpires that on the fateful night while he along with
his son P.W. 5 Bidyut Das and his wife Chandana Das,
who was killed in the incident by the dacoits, were
sleeping in one room, their daughter P.W. 4 Barsha Das
was sleeping in the next room. According to the P.W. 1
Bimal Das, as soon as they found that the dacoits
entering into their flat, they closed the door of their
bedrooms and he asked his wife to seek help of the
neighbours by raising alarm from the balcony. It was
his further evidence as soon as his wife opened the door
of the balcony, she found some of the miscreants were
hiding there and seeing the miscreants as his wife
shouted by uttering "Surjo Tui Eki Korchis", the
miscreants immediately pushed her from the balcony.
73. Evidence goes to show that P.W. 1 Bimal Das in
the T.I. Parade identified the appellant along with
other accused persons namely Surjya Golder, Babar
Ali Mondal, Ratan Tarai, Satish Gautam, Bhagwan
Singh, Srikanta Dey, Shisu Pal, Babulal Singh and in
Court the said witness identified all of them including
the appellant. Similarly, P.W. 2 Abhijit Paul in T.I.
Parade identified Satish Gautam, Bhagwan Singh,
Srikanta Dey, Shisu Pal, Babulal Singh and the
appellant and in court he identified all the aforesaid
miscreants. The witness, Niranjan Paul (P.W. 3), in T.I.
Parade identified Babar Ali Mondal, Ratan Tarai, Satish
Gautam, Prem Pal, Bhagwan Singh, Srikanta Dey
Babulal Singh and the appellant. In Court the witness
identified all the said miscreants including appellant.
The witness P.W. 5 Bidyut Das in the T.I. Parade
identified the accused Babulal Singh and the appellant
Ganpatram and at the trial in dock the witness also
identified the appellant. The witnesses were kept hostage
on gun point and were made to carry out the orders of
the miscreants and as such the witnesses were at close
quarters with the miscreants which occasioned their
identification without any iota of doubts. Besides making
out an evasive defence challenging the identification of
the appellant and the other miscreants, no definite and
positive case has been made out to render such
identification suspected and untrustworthy.
74. Therefore, we are quite convinced that the
appellant Ganpatram and other miscreants were
sufficiently and credibly identified by the witnesses in
the Test Identification Parade as well as at the trial as
the persons involved in the commission of dacoity with
murder which was committed at the house of the de-
facto complainant. The present appellant was also
identified as one of two persons who threw the wife of
the de-facto complainant from the balcony when she was
trying to get help from the neighbors.
75. The evidence of the Judicial Magistrates who
conducted the T.I. Parade, i.e. P.W. 9 Sandip
Chakraborti and P.W. 34 Nachiketa Bera together with
the T.I. Parade Sheets, goes to establish that all legal
formalities were observed and necessary precautions
were taken during the T.I. Parade. During their cross-
examination nothing favourable could be elicited by the
defence which could create any doubt over the TI Parade.
76. It is well settled proposition that minor
contradictions and/or exaggerations may occur owing to
normal error of observation and the mental disposition
varying from person to person and depending upon the
facts and circumstances of particular case. Such
contradictions cannot vitiate the prosecution case or
make any dent in its veracity.
77. Evidence on record also reveals that in course of
investigation, the appellant along with Babulal Singh,
Prem Pal, Bhagwan Singh, Banwari Singh, Satish
Gautam and Balbir Singh were apprehended from the
residence of P.W. 8 Haraprasad Karmakar situated at
Purbapara, Dashghara within the jurisdiction of
Dhaniakhali Police Station. They were residing as
tenants of PW8, occupying four rooms on the ground
floor. During such raid, various stolen properties, viz.
Gold and Silver ornaments in a rexine bag and house-
breaking instruments were also recovered. The stolen
articles and the housebreaking tools were produced
b e fo r e the police by the said a p p re h e nd e d accused
persons including the appellant and were seized in
presence of the witnesses P.W. 8 Haraprasad Karmakar
and P.W. 10 Rakesh Majhi under a proper seizure list.
The witnesses and the accused persons including the
appellant from whose possession the same were seized
signed on the seizure list. P.W. 8 and P.W. 10 have
corroborated the factum of such seizure. A few days later
on the basis of the interrogation of some of the accused
persons, the police further recovered certain stolen gold
and silver jewelries and the wearing apparels of the
appellants, viz. barmuda pants, which the accused
persons were wearing at the time of incident of dacoity,
which were seized in presence of P.W. 8 and P.W. 10
under proper seizure list duly signed by the said
seizure witnesses and signed by the accused persons at
whose instance the same were recovered.
78. The rent receipts in support of the fact that at that
relevant time the aforesaid accused persons were
residing at the house of P.W. 8 Haraprasad Karmakar as
his tenants were also seized. At the trial P.W. 8
Haraprasad Karmakar identified appellants Babulal
Singh, Bhagwan Singh, Satish Gautam while P.W. 10
Rakesh Majhi identified appellants Babulal Singh, Prem
Pal, Bhagwan Singh, Banwari Singh, Satish Gautam
as the persons who were residing at their house as
tenants occupying four rooms in the ground floor.
Therefore it seems to be sufficiently proved at the trial
that the appellant and other accused persons after
committing dacoity, took shelter at the house of P.W. 8
Haraprasad Karmakar in the guise of tenants and from
their possession stolen properties, house-breaking
instruments and their wearing apparels used at the time
of the dacoity were recovered by the police.
79. In the light of evidence on behalf of the
prosecution, led at the trial there appears no iota
doubt that the appellant was very much involved in the
commission of the dacoity at the residence, shoproom
and workshop of the de-facto complainant on the fateful
night. The evidence also conclusively establishes that
during such dacoity, wife of de-facto complainant was
thrown down from the balcony and was killed by the
members of the miscreant gang. Huge amount of gold
and silver ornaments were looted away from the
workshop situated at the ground floor of the said
premises. The guilt of the appellant is also established
beyond doubts by his identification by the witnesses
present at the place of occurrence at the relevant time
and also by recovery of the stolen properties and house-
breaking instruments from the possessions of the
accused persons including the appellant.
80. The offence of dacoity has been defined under
section 391 of the Indian Penal Code in the following
terms, that's to say:-
391. Dacoity.--When five or more persons
conjointly commit or attempt to commit a
robbery, or where the whole number of
persons conjointly committing or attempting
to commit a robbery, and persons present
and aiding such commission or attempt,
amount to five or more, every person so
committing, attempting or aiding, is said to
commit "dacoity".
81. In the instant case the number of the miscreants
was 15, much more than the statutory minimum of 5
persons required to constitute an offence of dacoity. This
leaves no doubt that an offence of dacoity was committed
by the appellant with the other miscreants at the house
of the de-facto complainant.
82. Section 396 of the Indian Penal Code, 1860,
provides that
396. Dacoity with murder.--If any one of five or
more persons, who are conjointly committing
dacoity, commits murder in so committing
dacoity, every one of those persons shall be
punished with death, or 1[imprisonment for
life], or rigorous imprisonment for a term
which may extend to ten years, and shall
also be liable to fine.
83. The appellant was identified as one of the person
who threw the wife of the de-facto complainant from the
balcony resulting in her death. There are overwhelming
evidence that such act was committed when the wife of
the de-facto complainant tried to thwart the commission
of such offence by seeking help from the neighbors
which indicates that the murder was committed in
furtherance of the commission of the offence of dacoity.
As such, there appears no doubt that the appellant is
liable for the punishment prescribed under Sections
395/396 of the Indian Penal Code and was justifiably,
convicted for such offence.
84. So far as punishment under Section 397 of the
Penal Code, 1860, is concerned, the evidence on record
exhibits that the miscreants while committing the
dacoity were carrying firearms. They forced the de-facto
complainant and his associates to act at their tunes on
the point of firearms. They acted so desperate that they
did not hesitate in committing murder of the wife of de-
facto complainant when she tried to seek help from the
neighbors. These facts by itself, show that deadly
weapon was used in the commission of the offence of
dacoity and the miscreants including the appellant had
every intention to cause death or grievous hurt in
furtherance of the offence. Therefore, we do not find any
illegality with the conviction and sentence awarded for
the offence punishable under Section 397 of the Indian
Penal Code and the same deserves to be upheld.
85. Evidence on record also reveals that several stolen
articles procured in the commission of dacoity were
recovered at the instance of the appellant from his
possession. The aforesaid articles were duly recovered
and identified by the witnesses including the owner of
such articles, as the property with which he was
deprived of, in the incident of dacoity. The appellant was
found in possession of such stolen articles knowing the
same to have been procured by way of dacoity with
which he himself was involved as defined under Section
410 of the Indian Penal Code. Section 412 of the said
Code provides for the punishment for receiving as well as
retention of such property. Therefore, the appellant
Ganpat Ram appears to be rightly convicted and
sentenced for the offence punishable under Section 412
of the Indian Penal Code, 1860, and the same is liable to
be affirmed.
86. However, since the sentence under Section 412 of
the Indian Penal Code of the other accused persons in
other appeals being CRA No. 69 of 2010, CRA No. 130 of
2010, CRA No. 162 of 2010 and CRA No. 269 of 2010
were reduced by a coordinate bench, to rigorous
imprisonment for 10 years with a fine of Rs. 10,000/-
each, and in default to suffer rigorous imprisonment for
one year each, it seems desirable that the sentence of
this appellant be also reduced to rigorous imprisonment
for 10 years with a fine of Rs. 10,000/- and in default to
suffer rigorous imprisonment for one year.
87. On the realization of fine amount, the entire amount
shall be paid to the legal heirs of the deceased
Chandana Das by way of compensation.
88. Accordingly, the judgment of conviction dated
21.12.2009 and order of sentence dated 19.06.2015
passed by learned 2nd Additional Sessions Judge, Fast
Track Court, Barrarckpore, North 24 Parganas, Sessions
Trial No. 101(12) of 2008 corresponding to Sessions
Case No. 11(07) of 2008 are affirmed.
89. Period of detention already undergone by the
appellant during investigation, enquiry and trial shall be
set off in terms of the provisions of section 428 of Code
of Criminal Procedure.
90. Trial 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.
91. The appellant, if on bail, shall surrender to the
learned trial court to undergo the remaining part of his
sentence within 2 weeks from the date. In default, the
jurisdictional court will take appropriate steps to secure
their presence.
92. Photostat certified copy of this order, if applied for,
be given to the parties on priority basis on compliance of
all formalities.
93. Consequently, the instant appeal being CRA 154 of
2018 is dismissed.
94. Connected applications, if any, shall also stand
disposed of.
[MD. SHABBAR RASHIDI, J]
95. I agree.
[DEBANGSU BASAK, J.]
