Kuddus Mir vs The State Of West Bengal
2023 Latest Caselaw 2121 Cal

IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE

Before: Hon'ble Justice Sugato Majumdar

CRA 557 of 2015 Kuddus Mir Vs.

The State of West Bengal With CRA 560 of 2015

Biswanath Sarkar @ Sk. Rahul & Anr.

Vs.

                       The State of West Bengal

         I.A No. CRAN/1/2015 (Old No. CRAN/2865 /2015)


For the Appellant in
CRA 557 of 2015              :    Mr. Satadru Lahiri

For the Appellant in
CRA 560 of 2015              :    Ms. Anasuya Sinha
                                  Mr. Avishek Sinha
                                  Ms. Pallavi Priyadarshee

For the State                :    Mr. Narayan Prasad Agarwala
                                  Mr. Imran Ali
                                  Mr. Debjani Sahoo



Hearing concluded on         :    16/03/2023

Judgment on                  :    30/03/2023


Sugato Majumdar, J.:-

These two criminal appeals arise from a common judgment of conviction

dated 06/04/2015 and order of sentence dated 07/04/2015 passed by the

Additional Sessions Judge, 1st Court, Sealdah whereby the present appellants were

convicted under Section 392 of the Indian Penal Code to suffer rigorous

imprisonment for a term of seven years and to pay fine of Rs. 2000/- each in

default of which they would suffer a further imprisonment of six months.

Genesis of the case is the written complaint dated 15/04/2012 made by

the de-facto complainant Raju Das to the Officer-in-Charge, Phoolbagan Police

Station. The de-facto complainant has a cloth shop named "Gitanjali" at 20 A.P.C.

Road, Kolkata. The day before, he opened his shop at 11:00 a.m. and closed it at

11.30 p.m. since that particular day was the first day of Bengali calendar year,

namely "poila baishakh". His eight years old son was with him that day. They

were waiting before Jagat cinema hall to catch a shuttle taxi to reach home. After

waiting for 20 minutes a car (Tata Indica) came nearby shouting "airport, airport".

The windowpane of the car was black. The de-facto complainant asked whether it

would go to Baguihati to which the driver agreed. There were four persons inside

the car including the driver. The driver was in the front row along with another

person whereas the back seat was occupied by two other persons. The first person

sitting on the left-hand side of the back seat came down to accommodate the de-

fact complainant along with his son in the middle of the seat. After some time, the

driver rolled-up the window panes and the person sitting beside the driver took

out a fire arm and placed the same on forehead of the son of the de-facto

complainant demanding ornaments. Ultimately those persons snatched away

valuable gold ornaments and mobile handset from the de-facto complainant and

forced out them from the car. They gave him fifty rupees as bounty to reach

home. Subsequently he got a taxi to return home. On the next day he lodged the

complaint.

The complaint was received by the concerned police station and registered

as Phoolbagan P.S. Case No. 106 dated 15/04/2012 under sections 392/397 of the

Indian Penal Code read with section 25 (1B) (a) of the Arms Act. After initial

investigation by the local police station the Detective Department of Kolkata

Police took over the investigation. On completion of the investigation charge

sheet was filed under Sections 392 and 397 of the Indian Penal Code. The

Additional Chief Judicial Magistrate committed the case to the Court of Sessions.

Subsequently the case was transferred to the original trial court.

Charges were framed which were read over and explained to the accused

persons to which they pleaded not guilty and claimed to be tried. Hence the trial

began.

In course of trial the prosecution examined as many as 16 witnesses, and

used various documents as evidence which were marked variously from Ext. 1 -

26. The prosecution also adduced material evidences which wear also marked

variously as Mat. Ext. I - V.

The accused persons were examined under section 313 of the Code of

Criminal Procedure, 1973. Defense of the accused persons were false implication

and allegations.

The Trial Court on completion of the trial came to the conclusion that the

accused persons were guilty of the offence charged under Section 392 of the

Indian Penal Code. They were convicted and sentenced to suffer rigorous

imprisonment for seven years and fine of Rs. 2000/- in default of which

imprisonment for a father period of six months.

On being aggrieved and dissatisfied, two different appeals are preferred

by the accused persons.

The learned Counsel appearing for the appellants in Criminal Appeal No.

560 of 2015 argued that P.W. 1 namely the plan maker, categorically stated that the

plan was prepared as per direction of the investigating officer thereby rendering

the plan and the place of occurrence is doubtful, according to Ms. Sinha, learned

Counsel.

Next, it is argued that the written complaint was lodged after a few hours

of the incident after much speculation. The written complaint does not contain

any description of the purported stolen gold chain. No specifications are given in

respect of the articles stolen articles. The written complaint also fails to give any

details of the car alleged to have been involved in the incident. Furthermore the

car was never seized. The description was car was also not given by the de-facto

complainant in course of trial. The miscreant who held a gun pointed at behaviour

peace son of the de-facto complainant was neither arrested not put on trial. The

place around Jagat cinema hall is a thickly populated area. The investigating

agency did not examine any person of the locality. This is a lacuna in the

investigation of the case.

Next it was argued that the test identification parade was not properly

done. Ideally in a taste identification parade all the suspects should be of same

height and stature. However, in the instant case the suspects were of different

stature and height, some of them were bearded and some of them were shaved.

This vitiates and undermines the identification in test identification parade. It was

further argued that admittedly light inside the car was not glowing. It is hard to

believe that in absence of light the de-facto complainant observed the faces of the

appellants and remembered their faces subsequently.

Next, it was argued by Ms. Sinha that P.W. 3 is a chance witness. His

name neither figured in the written complaint nor mentioned by the de-facto

complainant in course of examination. His evidence cannot be relied upon

because mostly his evidence was procured by the investigating agency.

Next, it was argued by Ms. Sinha that son of the de-facto complainant is a

vital witness. He should be examined to corroborate the evidence of the de-facto

complainant and to highlight on the truth of the matter. There is no explanation

on behalf of the prosecution as to why he was not examined. Non-examination of

the son of the de-facto complainant undermines the prosecution case seriously for

which doubt is cast in the prosecution case.

It was further argued by Ms. Sinha that P.W. 4 was a member of the

raiding team that arrested Sadiyar Sheikh on 06/05/2012. He stated that upon

arrest and on search one purse, cash of Rs. 25/-and a receipt of purchasing

jewellery was recovered from the possession of Sadiyar Sheikh. However he

exaggerated by saying that the purse contained one mortgage receipt containing

the name of Annapurna Jewellers. Such witness should not be believed as he

improved his version gradually. Even the seizure list there is no mention of name

of any jewellery shop. P.W. 6 who is the owner of Annapurna Jewellers stated in

evidence that Sadiyar Sheikh mortgaged the gold ring but he further stated that

there is no note in his register in that respect. Furthermore, there is no

specification of the gold ring in the receipt book. Therefore, recovery of the gold

ring is shrouded with doubts and mystery P.W. 8 and P.W. 9 witnessed recovery

of gold chain at the instance of Biswanath Sarkar. P.W. 9 is a chance witness who

happened to be present at the shop-room at the time of seizure. He stated in

evidence that he previously made a statement to the police that he noticed the

letters "DJ" written on the "S" of the chain. It is hard to believe that a bystander

shall notice such specifications and details at the time of recovery of the alleged

stolen article. Recovery of the gold chain is, therefore, also shrouded with

mystery and doubts. In nutshell, it is argued by Ms. Sinha that the investigation

was done perfunctorily, vital witnesses were not produced and evidences suffer

from serious contradictions and anomalies undermining the prosecution case.

Therefore, according to the learned Counsel, allegations against the appellants are

not proved beyond doubt. The Trial Court failed to appreciate evidence properly.

Therefore, the appellants should be acquitted on benefit of doubt. Ms. Sinha

relied upon:-

i. Satrughana @ Satrughana Parida Vs. State of Orissa 1995 Supp (4)

SCC 448.

ii. Gireesan Nair and Others Vs. State of Kerala (2023) 1 SCC 180.

iii. Bharama Parasram Kudhachkar Vs. State of Karnataka (2014) 14 SCC

431.

iv. Bobby Vs. State of Kerala (2023) SCC Online SC 50.

v. Digambar Vaishna & Anr. Vs. State of Chattishgarh (2019) 4 SCC 522.

vi. State of Rajasthan Vs. Talevar and Anr. (2011) 11 SCC 666.

vii. Gadadhar Chandra Vs. State of West Bengal (2022) 6 SCC 576.

Mr. Lahiri appearing for the appellant Kuddus Mir in Criminal Appeal

No. 557 of 2015 vehemently argued that recovery of stolen articles from the

appellant is not established. Evidence fails to prove and the articles were

definitely planted as there was no specification of the articles recovered, in the

statement or evidence of the de-facto complainant, P.W. 2. Mr. Lahiri further

argued that for the first time in evidence the de-facto complainant mentioned that

the alleged car involved in the offence was of steel colour. This is embellishment

in evidence of the de-facto complainant. According to him, the evidence of the de-

facto complainant is rife with contradictions of serious nature. Prosecution

evidence, according to him is not convincing and cogent enough to bring home

the guilt of the appellant. According to him there was erroneous fact-finding and

appreciation of evidence by the Trial Court which warrants interference of this

court in setting aside the impugned judgement of conviction and the order of

sentence.

Mr. Agarwala, appearing for the State negated the arguments so advanced

on behalf of the appellants. According to Mr. Agarwala non-examination of the

son of the de-facto complainant is not so vital so as to undermine the otherwise

reliable prosecution case. According to Mr. Agarwala it is the quality of evidence

not quantity which is of prime importance. Evidence of P.W. 2 namely, the de-

facto complainant is convincing and cogent enough to establish the prosecution

case was.

Next, it is argued by Mr. Agarwala that is written complaint is not an

encyclopaedia. It is not supposed to contain every minute detail of the facts.

Omission of the name of P.W. 3 in the written complaint is not fatal. If a person

was present on the place of occurrence and eye witnessed a part of the incident his

evidence cannot be discarded only on the ground that he is a chance witness was.

Even if he is a chance witness, his evidence is corroborative in nature. Therefore,

there is no scope or question to discard his evidence.

Next it is argued by Mr. Agarwala that the appellants were identified on

dock. Identification on dock is more convincing and acceptable than their test

identification parade. Even it is not necessary that test identification parade

should be conducted at all. Therefore, according to Mr. Agarwala argument at

first by the appellants in respect of test identification parade is not convincing.

Next point argued by Mr. Agarwala is that articles were recovered on the

basis of leading statements of the applicants and accused persons. Relevant part

of their statements are adduced in evidence and marked as exhibits. Recoveries of

stolen articles were witnessed by independent witnesses. The de-facto

complainant identified those articles in Court. Seizure witnesses were examined

and cross-examined. In the whole process of recovery proper legal paraphernalia

were scrupulously followed. Nothing is there in evidence to vitiate or set at

naught the recovery of stolen articles. Arguments advanced on behalf of the

appellants hold no ground. In nutshell, Mr. Agarwala argued that the Trial Court

rightly appreciated the evidence in proper perspective without any area or fault.

Therefore, according to him, the impugned judgement of conviction and the order

of sentence should not be interfered into.

I have heard the rival submissions.

The prosecution case is based on testimony of the de-facto complainant,

namely P. W. 2 and P. W. 3, identification of the accused persons by them,

recovery of stolen articles on the basis of leading statements of the accused

persons, identification of the stolen articles by P. W. 2, and testimony of the

seizure witnesses. It is settled law that F.I.R. is not an encyclopedia. Even when

the F.I.R. is not as full as could be, it cannot be ignored altogether. It can be used

for corroboration of the statement of witnesses [Abdul Goni & Ors. Vs. State of

M.P.; AIR 1954 SC 31]. Criminal Courts should not be too fastidious with mere

omissions in the First Information Report since the statements and contents of the

F.I.R. are not expected to be chronicle of every detail in [Pedda Narayana Vs.

State of A.P.; AIR 1975 SC 1252]. Although, as argued, the number or detailed

descriptions of the car in question are absent in the F.I.R., such absence cannot be

said to have caused any prejudice to the appellants.

The F.I.R. was lodged on the next day. The fact of the case is that the

incident took place at mid night. Written complaint was lodged on the next date.

This cannot be said to be a delayed one, as appears from the explanation of the

P.W. 2, the de-facto complainant.

The learned Counsels appearing for the appellants brushed aside the

evidentiary value of testimony of P. W. 3 on the ground that he was a chance

witness and that his presence has never been mentioned by the de-facto

complainant. Neither in the written complaint nor in course of oral testimony P.

W. 2, the de-facto complainant disclosed the name of P.W. 3 as accompanying him

while he was waiting for the taxi on 15/04/2012. P.W. 3 stated that he was

waiting in the bus stop along with the de-facto complainant. He saw the accused

persons inside the car. He stated in his evidence that he identified them in taste

identification parade, after that night. There is nothing to indicate that either the

accused persons or their photographs were shown to P. W. 3 in between time. It

was pointed out by the learned Counsel for the appellants that P.W. 3 admitted in

course of evidence that there was no light inside the car. In that situation,

remembering the face of the appellants, seen in darkness and identifying such

faces after lapse of one month is rather unnatural. This imports doubts and

suspicious in the evidence and identification by the appellants.

One thing must be kept in the mind. The place where P.W. 3 was

standing was a bus-stop. Numbers of persons are supposed to be there to catch

bus or taxis to return home. Presence of P.W. 3 at that busy public place is not

unnatural. Nothing is there to indicate that P.W. 3 nurtured any motive to falsely

implicate the appellants. Moreover, evidence of P.W. 3 is corroborative to the

testimony of P.W. 2, which is in-tandem. In other words, evidence of the chance

witness and evidence of the de-facto complainant are corroborative to each other.

Therefore, evidence of P.W. 3 cannot be discarded or disregarded.

P.W. 2 namely the de-facto complainant identified the appellants in taste

identification parade as well as on dock. He is identification of the appellants was

tried to be brushed aside by the learned Counsel for the appellants on the ground

that test identification parade was not properly held. It is settled law that

identification in test identification parade is not a sacrosanct. Evidence of mere

identification of the accused person at the trial for the first time is from its very

nature inherently of a weak character. The purpose of test identification seems to

be to test and strengthen the trustworthiness of that evidence. It is considered,

therefore, a safe rule of prudence to generally look for corroboration of the sworn

testimony of witnesses in Court as to the identity of the accused who are strangers

to them in the form of earlier identification proceeding [Budhsen Vs. State of

Uttar Pradesh; AIR 1970 SC 1321]. Both P.W. 2 and P.W. 3 identified the accused

persons namely the present appellants in test identification parade as well as on

dock. P.W. 2, in course of cross examination, stated that neither the photographs

of the appellants were shown to him before test identification parade nor he was

taken to the Presidency Correctional Home by police vehicle to identify the

appellants in test identification parade. Therefore, identification of appellants' by

the witnesses namely P.W. 2 and P.W. 3 cannot be discarded. In Satrughana vs

State of Orissa [(1995) Supp (4) SCC 448], relied upon by the appellants the

Supreme Court of India, the Court observed that nothing was there on record to

show that the prosecution had taken care to ensure that identity of the accused

persons was not revealed when taken to Court and produced as required by law.

The court noticed that there was no corroborative evidence to identification in test

identification parade. This case was decided in facts and circumstances of its own.

Similarly, in Gireesan & Ors. Vs. State of Kerala [(2023) 1 SCC 180] Supreme

Court of India noticed that the suspects were seen by the witnesses before the test

identification parade; the suspects were photographed and videographed. In the

situation, where the accused was shown to the witness before test identification

parade, the later was only a formality. It was also observed by the Court that in

that situation not only the test identification parade is inadmissible but

identification in the Court becomes meaningless. Ratio of this case is of not much

help to the appellants as they were decided in the context of facts and

circumstances specific to themselves. Identification of the appellants' cannot be

discarded, therefore, for reasons stated above.

Stolen articles were recovered on the basis of statement of the applicants

recorded under Section 27 of the Indian Evidence Act. These articles were seized

in presence of independent seizure witnesses. The seizure witnesses were

examined and cross-examined at length. Testimony of the seizure witnesses does

not cast any serious doubt in the process of seizure. Part of the statements of the

applicants recorded under Section 27 are adduced in evidence and marked as

exhibit. All the articles were recovered at the instance of the appellants as articles

stolen in course of robbery. All the stolen articles were identified by the P.W. 2

namely the de-facto complainant on dock. Minor omissions in mentioning

specifications of those articles do not undermine the evidentiary value of

otherwise cogent evidences adduced on behalf of the prosecution. In Bharama

Parasram Kudhachkar vs State of Karnataka [(2014) 14 SCC 431] all the witnesses

became hostile. Even the seizure witness and the person to whom stolen articles

were sold became hostile. The Supreme Court observed that the articles recovered

where of common use and were available to all and sundry. The only evidence

was statement recorded under Section 27 of the Indian Evidence Act leading to

recovery of articles. On that ground order of conviction was set aside. This is not

a case where the witnesses turned hostile leaving a very few pieces of acceptable

evidence. Ratio of Bharama Parasram Kudhachkar's case is not of much help for

the appellants.

The investigating officer namely P.W. 16 stated in evidence that attempts

were made to arrest the fugitive offender but could not be fructified. He also

stated in course of evidence that attempts were also made to recover the car

involved in the incident but could not be found. These are not the grounds for

which the prosecution case should be looked into with doubts and suspicions.

Evidence adduced by the prosecution before the Trial Court was cogent

and reliable. Evidences are corroborative. Except minor omissions there is

contradiction to undermine or set at naught the prosecution case. Furthermore,

F.I.R. is not encyclopedia to contain every detail. Omissions in F.I.R. of every

detail do not render the prosecution case doubtful by itself only. In view of the

fact that the prosecution proved the case beyond doubt, non-examination of the

son of the de-facto complainant is not fatal for the prosecution case, on the basis of

the principle that it is weight of evidence, not number which matters.

The Trial Court appreciated the evidences properly and came to the

conclusion applying the correct principles of law. Therefore, the impugned

judgment of conviction demands no interference. However, considering the fact

that the appeal has been pending for long sentences of the appellants are reduced

to six years instead of seven years. The appellants shall suffer rigorous

imprisonment for a term of six years instead of seven years. To this extent only

the order of sentence is modified.

In nutshell the instant appeal is partly allowed only modifying the term of

sentence without interfering with the judgment of conviction. The appellants

shall surrender before the Trial Court to serve out the rest of the sentences.

Accordingly, the instant appeal is disposed of. A copy of the order along

with the lower court record be sent back to the trial court forthwith.

Both the appeals are accordingly disposed of along with pending

applications, if any.

(Sugato Majumdar, J.)