Madhai Rai vs State Of West Bengal

Rajasekhar Mantha, J.

The appellant was one of eight accused who was convicted under Section 395 of the Indian Penal Code by judgment dated 26th August 2008

passed by the Additional District Judge, 1st Court, Alipore, South 24 Parganas.

The appellant was sentenced to suffer five years of Rigorous Imprisonment and to pay a fine of Rs.1000/-. Two of the accused being Nos. 4 and 5

have been acquitted.

The prosecution case in a nutshell is that on 3rd of January 2005 at about 1.20 p.m. eight persons including the appellant armed with deadly

weapons committed dacoity at the Samali Block Primary Health Centre under Binshnupur P.S., District- 24 Parganas (South). Pursuant to such

dacoity, the accused took away a sum of Rs.6,74,784/- from an almirah kept inside the office of the said Health Centre.

A case under Sections 395/397/412 of the IPC inter alia against the appellant.

The facts proved are that the Block Medical Officer of the said Samali B.P.H.C., one Dr.Dipankar Das had gone to the Treasury to withdraw the

salary of the staff of the B.P.H.C. on the 3rd of January 2005. A sum of Rs.6,74,784/- was withdrawn and taken back to the B.P.H.C. and kept in an

Almirah and was locked. The accused arrived in a yellow Taxi at the B.P.H.C. at 1:20 p.m. Initially two of the accused entered into the B.P.H.C. and

demanded to know from the employees, where the salary amount was kept. The two accused were carrying fire arms and sharp weapons. The 3rd

accused being a woman stood guard at the door of the B.P.H.C. that was locked from inside. When the accused were told that there was no money

in the B.P.H.C., they placed a Bhojali (large knife) on the throat of one of the officials of the B.P.H.C. and demanded to know where the money was

kept. The said official for fear of his life opened the almirah where the briefcase containing the money, was kept. The accused thereupon took the

briefcase with money and left the B.P.H.C. in a yellow taxi in which they had come. The whole episode lasted in10 minutes.

On the basis of the complaint filed by the BMO Dr.Dipankar Das, an F.I.R. was lodged which mentioned stolen property Rs.6,74,784/-. All the

accused except the appellant were apprehended and a chargesheet was filed. Charges were framed against one Saheb Das @ Bapi, Bhutu @

Debnath Bar, Sultan Molla, Sanat Mondal @ Batu, Swapan Mali, Pisa @ Susmita and Buro Banerjee @ Gautam under Sections 395 and 397 of the

IPC. A separate charge under Section 412 of the IPC was registered against Saheb Das @ Bapi and Bhuto @ Debnath as also Bata @ Sanat

Mondal, Sultan Molla, Swapan Mali. As against the appellant, charges have been registered under Section 395 and 412 of the IPC.

As many as 22 witnesses were examined. The accused were also examined under Section 313 of the Cr.P.C.

Sufficient evidence has been found against the accused including the appellant of having committed of offences under Section 395 and 412of the

IPC. Six of the accused including the appellant were found to be guilty of offence under Section 395 of the Cr.P.C. Swapan Mali and Sanat Mondal

were found not guilty of the offences and were set at liberty. The appellant was convicted and sentenced only under Section 395 of the IPC. The

facts have been duly proved and corroborated.

The appellant would canvas before this Court that the accused had not been identified by the witnesses in Court below although identified under the

T.I. Parade. Even in the T.I. Parade some of the accused have not been identified. It was also argued that the seizure witnesses could not identify the

appellant.

The above point is not relevant to the appellant as he was absconding initially in January 2005 and was subsequently apprehended only on the 9th

of September 2005. The appellant was, however, named in the first chargesheet. It was useless to conduct any T.I. Parade of the appellant after 9

months of the incident. Upon arrest of the appellant on 09-09-2005, a second chargesheet was submitted to Court. At the time of arrest of the

appellant and at the disclosure and information supplied by the appellant while in custody, a substantial sum of money that was looted from the

B.P.H.C. by dacoity inter alia by the appellant was recovered by the police.

A seizure list was prepared. This is available in the LCR. The factum of the appellant having committed dacoity is thus, proved and established in

terms of Section 27 of the Evidence Act. It is now well settled that when certain articles taken away by dacoity are recovered and seized on the

specific disclosure of an accused in custody, and such disclosure forms the part of the seizure list coupled with the fact that the prosecution had no

prior knowledge of the whereabouts of the goods in question, the offence is proved. The same is a presumption under Section 114 of the Evidence

Act. The proposition is settled by the Hon’ble Supreme Court in the case of Mohd. Inayatullah Vs. State of Maharashtra reported in AIR 1976

SC 483.

‘The conditions necessary for bringing this section into operation are (1) the discovery of a fact, albeit a relevant fact, in consequence of the

information received from a person accused of an offence (ii) the discovery of such fact must be deposed to, (iii) at the time of the receipt of the

information the accused must be in police custody, and (iv) only “so much of the information†as relates distinctly to the fact thereby discovered is

admissible. The rest of the information has to be excluded.’

There is, however, one fact to be noted that despite recovery of the stolen money from the appellant and proof of his having committed and being

involved in the dacoity, the Sessions Judge did not deem it fit to include commission of an offence under Section 412 of the IPC. This Court is of the

view that the appellant must be convicted both under Sections 395 and 412 of the IPC. The conviction of the appellant is modified as above. The

appeal is dismissed.

This appeal was admitted on 16th December 2008. The appellant had already undergone 3 years 4 months and 11 days in confinement.

In view of the above, the bail of the appellant and suspension of the sentence is cancelled and set aside. The fine is also revived. The accused

shall be apprehended immediately and made to undergo the available balance of sentence. The accused shall also pay fine as directed by the Trial

Court in default whereof the consequences shall follow.

It is indeed, however, surprising to note that the finding of the Sessions Judge in the sentencing Order dated 26-08-2008.

“As the money so seized during investigation by the Investigating Officers have not been exhibited during trial, the District Magistrate is to recover

that amount of Rs.34,390/-(Rupees Thirty-four thousand and three hundred ninety) only from the salary of the I.O. Sri ShibaRanjan Dutta, S.I. of

Police (P.W.19) and further amount of Rs.2,34,000/- (Rupees Two Lakhs thirty-four thousands) only from the salary of the I.O. Sri TarakSankar

Bhattacharya, S.I. of Police (P.W.21), if the same amounts have not been deposited to the meantime to the concerned authority.â€​

The above fact that the amount recovered was not deposited with the treasury by the two Investigating Officers is indeed shocking. This Court

recommends departmental enquiry for major penalty as also Criminal Proceedings, against two Investigating Officers, namely, Shibranjan Dutta (S.I.

of Police) and Tarak Sankar Bhattachariya (S.I. of Police).

The investigation and trial could certainly have been better conducted and the same would have been more of assistance to the Trial Court in

arriving at an easier conclusion.

This Court wishes to place on record, the very sincere efforts put in by Learned Advocate for the appellant in conducting the instant appeal.

No order as to costs.

Let a copy of this order be sent by the Registrar General to the Superintendent of Police, South 24-Parganas for necessary action.

Urgent Xerox certified copy of this judgment, if applied for, be supplied to the parties on urgent basis.