Calcutta High Court (Appellete Side)
Ashoke Shit vs The State Of West Bengal on 25 January, 2023
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Ananya Bandyopadhyay
C.R.A. 45 of 2005
Ashoke Shit
-Vs-
The State of West Bengal
For the Appellant : Mr. Malay Bhattacharyya
Mr. S. Ghosal
Ms. Sudipa Sengupta
For the State : Mr. Avishek Sinha
Heard on : 23.11.2022
Judgment on : 25.01.2023
Ananya Bandyopadhyay, J. :-
1.
This appeal is preferred against the judgment and order of
conviction dated 30.11.2004 passed by Sessions Judge, Bankura
in Sessions Trial no. 3(3)/2002 arising out of Sessions Case no.
1(1)/2001 convicting the appellant under Section 412 of the Indian
Penal Code sentencing him to suffer rigorous imprisonment for 2 ½
years and to pay a fine of Rs. 500/- in default to suffer further
rigorous imprisonment for six months.
2. The prosecution case emanated on the basis of a complaint filed by
project director WB CADC Sonamukhi Project Bankura inter alia
stating that on 16.08.1987 at about 6.30 hours in the morning, Sri
Pranab Kumar Mukherjee son of Sri Bhupati Mukherjee of
Shiromonipur under Police Station Sonamukhi, a master roll
worker of the project, came to his house and informed him of
unknown dacoits being armed with bombs, lathi and other
weapons who forcibly entered the office through the grilled veranda
and severely assaulted the night guard Narayan Gopal Mondal.
They broke open the rolling shutter of the godown of the project
and took away 5HP electric motors, pumps etc. of the shallow
tubewells kept in that godown. The dacoits also exploded bombs at
the time of dacoity. He further submitted the details of the property
stolen and sought for necessary action.
3. Based on the complaint Sonamukhi PS Case no. 5/50 dated
16.08.1987 was instituted after drawing a formal FIR and
investigation was initiated which culminated in the submission of
charge sheet under Section 395/412 IPC against the accused
persons. Charges were framed under Section 395 of IPC against
the appellant Ashoke Shit and Bachhu alias Gouri Sankar Saha
Choudhury and under Section 412 IPC against the appellant
Ashoke Shit to which the accused persons pleaded not guilty and
claimed to be tried.
4. The prosecution in order to establish its case cited 15 witnesses
and exhibited certain documents.
5. Ld. Advocate, Mr. Malay Bhattacharyya for the appellant submitted
the Ld. Trial Court misjudged the entire evidence adduced by the
prosecution and acquitted the co-accused persons charged under
Section 395 IPC. It was strenuously argued that a charge under
Section 412 IPC cannot sustain unless a charge under Section 395
IPC was proved. The Ld. Trial Court did not consider the deposition
of seizure list witnesses viz. PW 7, PW 10 and PW 11 who were not
present at the time of seizure at the spot. No T.I. parade was
conducted with regard to the identity of the appellant or the stolen
goods to prove the same to be identical with the seized goods.
Moreover, the alleged recovery of stolen goods from the courtyard of
the appellant's house was not admissible under Section 27 of the
Indian Evidence Act. There was a disparity in the Nos. of HP
Electric Motors stolen as mentioned in the FIR to be 5 in contrast
to 29 as deposed by PW 14. The prosecution failed to prove the
alleged goods recovered from the Courtyard of the appellant to be
stolen and under such circumstances the appeal should be
allowed.
6. The Ld. Advocate for the State, Mr. Avishek Sinha submitted the
credibility of the sole eyewitness i.e. the nightguard to witness the
dacoity is in disputable. The recovery of the goods from the custody
of the appellant in presence of the witnesses is established, which
amply constitutes the offence to have been committed by the
appellant knowingly, confessing to have destroyed the number
plate of the electric motor before the police at the time of seizure.
The Jimmanama lists the items stolen and predominantly justifies
the dacoity committed and the prosecution has succeeded in
proving its case beyond reasonable doubt and accordingly prayed
for dismissal of the appeal.
7. A circumspection of the prosecution evidence revealed PW 1 Shri
Narayan Gopal Mondal to be recruited as Night Guard of CADC
building situated at Nanchanhati, a project office. On 15.08.1987
at 12 midnight/1 am certain people arrived at the gate of the office
and abused him. Consequently, PW 1 screamed. Those people
exploded bombs, disconnected electric and telephone connection
resulting in darkness. Four to five persons entered the office
breaking one gate and four other persons placed a telephone pipe
across the chest of PW 1 restraining and assaulting him whereby
he lost his senses and regained the same at Sonamukhi Hospital
after 24 hours. The dacoits assaulted him and left with shallow
tubewell motor from the office. PW 1 could not recognize any of the
dacoits.
8. PW 2 Shri Sankar Mondal was declared hostile by the prosecution
who stated to have heard about the dacoity in the CADC office
which was not visited by him thereafter.
9. PW 3 Pranab Mukhopadhyay was declared hostile by the
prosecution who stated to have known about the dacoity at the
godown of CADC project at Sonamukhi taken place in his absence.
PW 3 went to the place of occurrence being informed of the dacoity
and found PW 1 lying unconscious. He denied the theft of electric
motor and pump as well as the persons involved in such dacoity.
10. PW 4 Shri Rabi Bauri resided adjacent to the CADC Project at
Nanchanhati. He had been to the office of the project being
informed of the dacoity and found the theft of the motor. He was
unaware of anybody's arrest.
11. PW 5 and PW 6 Prasanta Bauri and Sadhan Mohanta
respectively did not see the dacoity but learnt about the same to
have taken place at the CADC project at Nanchanhati.
12. PW 7 Prakash Chandra Nag was a Commissioner of the
Sonamukhi Municipality who went inside the ceramic factory at
the instance of Darogababu and one Rahababu Project Officer, of
the CADC Project. He had seen certain pumps and motors kept at
a place and others being excavated in the presence of Barababu,
Rahababu and Municipal Chairman Radhagobinda Barat. He
denied the presence of any of the accused persons. He was
declared hostile by the prosecution. He identified his signature on
the seizure list marked as Ext. 1, prepared at the police station
where the articles had been shifted.
13. PW 8 Shri Nani Gopal Ghosh heard about the incident of the
dacoity committed at CADC Office of Nanchanhati. He saw the
curved, damaged collapsible gate and the night guard Narayan
Mondal crying.
14. PW 9 Asis Kumar Mondal was declared hostile by the
prosecution who stated to have heard about the dacoity and denied
visiting the place of occurrence or his personal knowledge about
the incident or the persons involved in the dacoity.
15. PW 10 Shri Pradip Kumar Shit identified his signature on the
seizure list marked as Ext. 2.
16. In his cross-examination he stated to have signed a blank paper
at the direction of the police without knowing anything about the
incident.
17. PW 11 Tarun Kumar Ghar was called at the poice station by
Barobabu and asked to sign the seizure list at the police station.
He identified his signature on the seizure list marked Ext. 2/1. He
also heard about the dacoity.
18. In his cross examination he stated that police took his signature
on a blank paper at the police station.
19. PW 12 Shri Sourindramohan Mukherjee signed the seizure list
relating to the dacoity at the police station and identified his
signature marked as Ext. 2/2.
20. During his cross-examination he stated to have heard about the
dacoity but could not say the contents written in the seizure list.
21. PW 13 Sri Pratap Chandra Das was posted as OC Sonamukhi
police station on 16.08.1987 and identified his endorsement
marked Ext. 3 on a written complaint received from project director
T. Raha on 16.08.1987 initiating Sonamukhi PS case no. 5 dated
16.08.1987 under Section 394 IPC. He filled up the formal FIR and
signed the same marked as Ext. 4. In the course of investigation he
visited the place of occurrence and prepared the rough sketch map
with index signed by him marked as Ext. 5. He examined the
available witnesses and seized one electric motor register, certain
splinters of bomb marked as Ext. 6. He further seized two broken
locks and one bamboo lathi under a seizure list marked as Ext. 7.
On 21.09.1987 he seized one truck bearing no. WGC-2048, its
papers and one chit on which Ashoke Shit wrote to one Bachhu to
deliver five pieces of articles to the owner under a seizure list
marked Ext. 1/1.PW 13 seized one five horsepower electric motor
excavated from the courtyard of the appellant Ashoke Shit as
identified by him in presence of witnesses and his signature was
marked as Ext. 2/3. On 21.09.1987 he seized 17 pieces of five HP
electric motor unearthed from the compound of Iswari Ceramic
Industry, Sonamukhi as shown by accused Bacchu Saha
Chowdhury in presence of witnesses. Those articles were covered
by eight small bags. The bags were seized along with one spade,
one iron jack under the same seizure list at the same place. Item
No. 15 to 17 of the seizure list were recovered and seized from the
godown of Iswari Ceramic Industry, Sonamukhi shown by accused
Chandrika Ram and the said seizure list prepared and signed by
him was marked Ext. 8. One electric motor register was left in the
jimma of Tarapada Raha, the Project Director. The carbon copy of
the said jimmanama prepared and signed by him under carbon
process was marked as Ext. 9. The project Director submitted a list
of articles with numbers that were stolen during dacoity. The
injury report of the injured night gurad PW 1 Narayangopal Mondal
was collected from Sonamukhi Hospital which was marked X for
identification. On 24.08.1987 he arrested Ajit Mondal and Akhil
Mondal and forwarded them to the Court. On 27.08.1987 he
arrested Ashoke Shit and forwarded him to the Court. On
21.09.1987 he arrested Bacchu Saha Chowdhury and forwarded
him to the Court. He examined the witnesses of the seizure and the
accuseds on 21.09.1987. On 18.10.1987 he examined the accused
Ashoke Shit who revealed the names of other involved accused
persons. On 25.11.1987 he arrested Dhananjay @Dhanu and
forwarded him to the Court. On 29/30.1.88 he arrested Malik @
Akbar Shah. On 18.07.1988 he was transferred and he made over
the case to his successor S.I. Dilip Bhattacharaya for further
investigation. PW 10 stated that witness Sankar Mondal stated to
have seen Narayan Mondal at the veranda of the office in injured
condition and the dacoits loaded mine motors on the truck from
the godown and went away. Witness Pranab Mukhopadhyay stated
to him that Akhil Mondal, Ajit Mondal and Ashoke Shit were
instrumental in the dacoity. Witness Prakash Chandra Nag stated
to him that Bacchu Saha Chowdhury confessed in his presence
that the articles stolen from CADC Office had been concealed and
pointed out the place where the electric pumps were kept along
with fourteen motors covered with gunny bags. He also stated that
13 number plates and other number plates had been removed from
the recovered motors. Witness Ashis Mondal had stated that
nightguard Narayan Mondal was lying on the veranda of the office
room in injured condition, the grill gate and the office room were
broken and the dacoits looted 5 HP electric motors.
22. PW 14 Tarapada Raha was the Project Director of the West
Bengal Comprehensive Area Development Project at the relevant
date and time. On 16.08.1987 he received the investigation of the
dacoity taking place on 15/16.08.1987. He, thereafter, submitted a
written intimation to the police station and reached the place of
occurrence along with the Police Officers and found 29 motors to
be stolen and further submitted a list of stolen articles to the
police. The written complaint was marked as Ext. 3/1 and his
signature on the register and books seized under a seizure list was
marked as Ext. 6/1. His signature on the seizure list marked as
Ext. 8/1 concerning recovery of the motors shown by Bacchu Saha
Choudhury. He received the custody of the 18 motors through a
Jimmanama marked as Ext. 10. The list of 29 motors submitted by
him seized by the Police Officer was marked as Ext. 11. The list of
staff was marked as Ext. 12. The signature of PW 14 on the seizure
list in connection with seizure of a truck bearing no. WBC2048 and
along with other relevant papers was marked as Ext. 1/2.
23. PW 15 Nirmalendu Talukdar submitted the chargesheet being
no. 9 dated 12.03.1989 under Section 395/412 of the IPC.
24. PW 13, the Investigating Officer in his testimony stated to have
seized one truck bearing no. WGC-2048, its papers and one chit on
which Ashoke Shit, the appellant wrote to one Bachhu to deliver
five pieces of articles to the owner under a seizure list marked Ext
1/1. Prosecution did not take any steps to verify the handwriting of
the author of the chit to be that of the appellant Ashoke Shit. The
five articles to be delivered was not described in its exactitude. The
said chit was not produced before the Court to ascertain its
originality. Reliance was placed on the document marked Ext. 2/1
whereby one 5 HP electric motor was excavated from the courtyard
of the appellant Ashoke Shit as identified by him in presence of the
witnesses with his signature marked as Ext. 2/3. PW 10, PW 11
and PW 12 were the seizure list witnesses who were not declared
hostile by the prosecution. PW 10 in his cross-examination stated
to have signed a blank paper at the direction of the police and
denied to know anything about the incident. PW 11 in his cross-
examination deposed to have signed a blank paper at the police
station. PW 12 in his cross-examination stated his ignorance of the
contents written in the seizure list. The manner in which the
seizure list was prepared doesn't render its creation to be infallible,
that too the seizure was conducted on 18.10.1987 after a
considerable time being elapsed from the date of the arrest of the
appellant on 27.08.1987. The entire process of seizure of the
excavated 5 HP electric motor appears to be shoddy and reckless,
reckoning the same to be untrustworthy and unreliable.
25. Section 412 of the Indian Penal Code states that any person
who dishonestly receives or retains any stolen property, the
possession of which, after having knowledge and reason to believe,
has been transferred by the commission of dacoity, or has
dishonestly received from a person, whom he knows or has reason
to believe to belong or to have belonged to a gang of dacoits, a
property which he has knowledge or has reason to believe that the
property is a stolen one, shall be punished with imprisonment for
life, or with rigorous imprisonment for a term which may extend up
to ten years and shall also be liable for a fine. Following ingredients
must be satisfied to make a person liable under Section 412 of
I.P.C.:
That the property is stolen property;
That such property was concerned with dacoity;
That the accused dishonestly received it; and
That accused had knowledge or reason to believe that the
said property was stolen in dacoity.
26. The prosecution has failed to substantiate either of the
ingredients cited above. The extrajudicial confession of the
appellant before the police to have destroyed the number plate of
the 5 HP Electric motor received as a stolen article is an
inadmissible piece of evidence. The prosecution further failed to
establish the source wherefrom the appellant received the disputed
article dishonestly knowing the same to be a usufruct of dacoity.
The prosecution failed to prove the ingredients of dacoity and the
co-accused and the appellant himself was acquitted of the charge
under Section 395 I.P.C. When the incident of dacoity cannot be
proved the charge under Section 412 I.P.C. to indict the appellant
cannot sustain.
27. In the case of K. Venkateshwara Rao @ Venkatal @ I. Rao vs.
State represented by Inspector of Police, A.P.,1 the Hon'ble
Supreme Court observed that,
"Therefore, we are of the opinion that the prosecution in this case
having failed to establish the charge of dacoity against the appellant
and assuming that the documents Ex. P-36 to P-40 were recovered
lawfully from the appellant, still has not established the fact that the
appellant had received these documents knowing that the same or
having believed that these documents were involved in a dacoity.
Since the onus of proving this knowledge lay on the prosecution and
the prosecution having failed to discharge this onus on the material
on record we are not satisfied that the appellant could be held guilty
of the offence under Section 412 IPC, more so when he has
specifically denied the recovery."
28. Under the facts and circumstances of the case the prosecution
has failed to establish its case and accordingly the appeal is
allowed.
29. It is informed that the appellant is on bail. Bail bond of the
appellant shall be discharged after expiry of six months in terms of
Section 437A of the Code of Criminal Procedure.
30. Lower court records along with a copy of this judgment be sent
down at once to the learned trial court for necessary action.
31. Photostat certified copy of this order, if applied for, be given to
the parties on priority basis on compliance of all formalities.
(Ananya Bandyopadhyay, J.)
(2002) 6 SCC 247
