Md. Siraj vs The State of West Bengal

All the appeals are taken up together since all the appellants have preferred appeals against the self-same judgment and order dated 25th of February, 2013 and 26th of February, 2013 respectively passed by learned Additional Sessions Judge, Fast Track Court II, Sealdah, South 24 Parganas in sessions trial no. 2(5) of 2009 and sessions case no. 5(4) of 2009 whereby and whereunder learned trial Judge has convicted the appellants for the commission of offence punishable under Section 395 of the Indian Penal Code and thereby sentenced them to suffer rigorous imprisonment for 10 years each and to pay a fine of Rs. 10,000/- in default to suffer rigorous imprisonment of six months each. Learned trial Judge has further convicted them for commission of offence punishable under Section 397 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for 7 years each. Learned trial Judge however, convicted Md. Siraj in addition to aforesaid charges under Section 25(1B)(a) of the Arms Act and sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs.2,000/- in default to suffer rigorous imprisonment for a term of 1

month. Learned trail Judge however, directed that all the sentences shall run concurrently.

Being aggrieved by and dissatisfied with such order of conviction and sentence of learned trial Judge, the appellants named above have preferred the aforesaid appeals on the ground that learned trial Judge could not appreciate the evidences on record properly and learned trial Judge has failed to appreciate the evidence of learned Magistrate who held Test Identification Parade of the aforesaid appellants and thereby came to an erroneous decision by convicting the aforesaid appellants.

On scrutiny of the appeals, it transpires that appellant Raju Singh and Sunny Singh have been released on bail during pendency of the hearing of their appeal being CRA 300 of 2013.

Appellant Ganga Pradhan alias Chotu has also been released on bail during pendency of appeal being CRA 362 of 2013. Appellant Md. Siraj has also been released on bail during pendency of his appeal being CRA 442 of

2013.

However, the prayer of Md. Siraj for suspension of sentence and his release on bail during pendency of the hearing of his appeal has been refused successively by this Court in CRA 521 of 2013.

For the sake of convenience all the appeals have been taken up together for hearing since all the appellants have been preferred against the self-same judgment and order of conviction.

In order to avoid repetition and for the sake of brevity we have summarized the submissions of learned Advocates of various appellants in order to come to a definite finding about the sustainability of the judgment of learned trial Judge.

Broadly speaking learned Advocates appearing on behalf of the appellants have vehemently challenged about the manner and mode of holding Test Identification Parade and it has been agitated that delay in holding such Test Identification Parade has virtually rendered the very purpose of holding Test Identification Parade valueless and such Test Identification Parade ought to have been discarded by learned trial Judge.

Learned Advocates further contended that learned trial Judge has committed a great mistake by accepting such report of Test Identification Parade in view of clear violation of the mode and manner of holding Test Identification Parade by prosecution witness no. 12. It has also been pointed out that the seal of Uttam Enterprise was found intact even on the date of recovery of some amount from alleged custody of the appellants and secondly, there was absolutely no whisper/mention of the denomination of such currency notes said to have been recovered from the possession of the appellants.

Non-examination of available witnesses at the time of occurrence has also been not looked into by learned trial Judge. Moreover, the witnesses, prosecution witness nos. 4, 5 and 6, who have identified the appellants at the time of Test Identification Parade, did not mention the specific role alleged to have been played by the appellants at the time of such occurrence. It has been pointed out that the investigating officer did not examine any independent witnesses from the place of occurrence and non-examination of such independent witnesses definitely has cast serious doubt in the veracity of the case of the prosecution. The witnesses who were present at the time of aforesaid seizure of incriminating articles namely money and fire arms, are stock witnesses of the prosecution and learned trial Judge has also committed substantial error in accepting such evidences of the stock witnesses of prosecution. Learned Advocate appearing on behalf of Md. Siraj has specifically pointed out that there was no lock of the bag wherefrom the fire arm and cartridges were recovered and such types of bags are easily available in the market. Learned trial Judge did not consider the impact of such cross examination and has erroneously came to a decision that such fire arms and cartridges were recovered from the possession of Md. Siraj.

On the basis of written complaint of one Riponjit Ghosh an employee of Uttam Enterprise the law was set in motion and Topsia police station case

no. 30 dated 31st January, 2009 under Section 395 / 397 of Indian Penal Code and 25(1B)(a) of the Arms Act was started against 7 unknown persons.

The case of the prosecution, as unfolded in the first information report is that on 31st January, 2009 at about 04.10 p.m. one representative of co-businessman named after Munna came to the shop of Uttam Kumar Shaw namely M/s. Uttam Enterprise having its business of Rubber Chemical situated at 14 & 15 Topsia Road(South), Calcutta-700085 situated inside Kohinoor Market being Shop No. B/15A and sometime thereafter his friend Monotosh Das also came to the shop of the defacto complainant. The defacto complainant thereafter gave Rs.10,000/- to the representative of Munna.

At that point of time one unknown person came from outside the shop and pointed gun to the defacto complainant and following him some other persons also entered into the shop room armed with gun etc. and started assaulting the defacto complainant and forced him to open the vault and took away the money kept inside the vault. The representative of Munna and his friend Monotosh Das were also kept silent by pointing gun towards them and while leaving the shop they also took away the cash and mobile phones from the representative of Munna and Monotosh. In all Rs.- 2,30,000/- was taken from the vault of the shop room and thereafter miscreants kept all of them confined inside the room and locked the room from outside and fled away. The defacto complainant has given the description of such miscreants in the written complaint and the defacto complaint has also stated in his written complaint that he would be able to identify the miscreants.

After completion of investigation police submitted charge sheet against all the appellants under Section 395 / 397 of the Indian Penal Code and under Section 25(1B) and 27 of the Arms Act against appellant Md. Siraj.

All the appellants were charged under Section 395 / 397 of the Indian Penal

Code. Appellant Md. Siraj was charged under Section 25(1B)(a) of the Arms Act in addition to aforesaid charges.

In order to bring home the aforesaid charges against the appellant the prosecution has examined only 23 witnesses and has produced good number of documents. After completion of the trial, learned trial Judge has accordingly convicted all the appellants under Section 395 of the Indian Penal Code. Appellant Md. Siraj was however convicted in addition to Section 395, under Section 397 of the Indian Penal Code as well as under Section 25(1B)(a) of the Arms Act.

It would not be out of place to mention in brief about the evidences adduced by the prosecution witnesses. Prosecution witness no. 1 Brojendra Nath Kayal has prepared a rough sketch map of the place of occurrence at the instruction of the then officer in charge of the Detective Department and the said sketch map has been marked as exhibit 1. The signatures appearing on the rough sketch map has been marked exhibit 1/1 and ?.

Prosecution witness no. 2 Md. Firoz was posted at the Photography section of the Detective Department at Lalbazar on 31st January, 2009 and as per the requisition of the then officer in charge of the Detective Department he had been to the place of occurrence and took some photograph which has been marked as Mat exhibit 1 and the negative has been marked as Mat exhibit 1/1. Both the witnesses are formal witnesses and they were admittedly not examined by the investigating officer during investigation.

These witnesses are not witnesses of the occurrence but in due discharge of their official duties and being requisitioned by the officer in charge of the Detective Department they had been to the place of occurrence to prepare a rough sketch map and to take photograph of the place of occurrence. No plausible reasons have been assigned by the defence so as to discard such plan and photograph. Non-examination of such witnesses by the investigating officer may be a lapse on the part of the investigating officer but such lapse of the investigating officer is not sufficient to discard the plan and photograph produced by the prosecution. Such materials simply projected the place of occurrence. No case has been made out by the defence to show that no such dacoity took place at the shop room of Uttam Kumar Shaw at the relevant point of time and accordingly the objection of the defence was rightly rejected by the learned trial court. Prosecution witness

no. 3 Uttam Kumar Shaw is the owner of that shop and at the relevant point of time his employee Riponjit Ghosh was present in that shop room and he reached his shop room immediate after such occurrence. He (prosecution witness no.3) broke open the lock and he found that Riponjit Ghosh, Monotosh and Noor Alam were kept inside the shop room under lock and

key. Some articles from the shop room were seized in his presence and on verification he found that more than Rs.2 lakh was stolen away from his shop room. Prosecution witness no. 3 is a post occurrence witness and at least we came to know from prosecution witness no.3 that a dacoity took place inside the shop room on the fateful date and more than Rs.2 lakh was stolen away from the vault of his shop room. This witness candidly showed that three persons were kept under lock and key by the miscreants and in fact those three persons were freed by prosecution witness no.3 after breaking open the lock. Riponjit Ghosh was present inside the shop room as an employee of prosecution witness no.3. This witness gave vivid description of such dacoity said to have been committed by the appellants and he also identified all the miscreants at the time of holding Test Identification Parade.

On careful scrutiny of the evidence of prosecution witness no.4 we do not find sufficient reasons to discard the evidence of prosecution witness no.4.

On the contrary it transpires that prosecution witness no.4 having no enmity with that of any of the appellants and having no hidden agenda of keeping the appellants behind the bar, has categorically explained about the occurrence in a reasonable and natural way so as to inspire the confidence of the court to accept him as a natural and truthful witness of such occurrence. The evidence of prosecution witness no.4 has been materially corroborated by the evidence of prosecution witness no.5 namely, Monotosh Das and the evidence of prosecution witness no.6 Noor Alam. All the aforesaid three witnesses were present at the time of occurrence. They have seen the miscreants. The miscreants namely the appellants took away the mobile phones and some money from the prosecution witness no.5 while leaving the shop room. The appellants also kept them confined inside the shop room while leaving the shop room and accordingly they had sufficient time and scope to see all the appellants and, therefore, they had been able to identify all the appellants at the time of holding the Test Identification Parade. Nothing has been elicited in the cross examination of the aforesaid witnesses that the face of the miscreants were covered by cloth or by musk.

Therefore, there was sufficient time and scope for the aforesaid witnesses to see the faces of the appellants and that is why they had been able to identify all the appellants at the time of such occurrence as well as at the time of holding Test Identification Parade.

Pursuant to the statement of Md. Siraj, while he was in police custody, one fire arm and two cartridges were recovered from inside a bag which was kept concealed by appellant Md. Siraj. Prosecution witness no.7 gave a natural description of such recovery of fire arm and cartridges from the possession of appellant Md. Siraj and we find no reason to discard such evidence of prosecution witness no.7. It may be that such type of bag is available in the open market and there was no lock in the said bag.

Unfortunately, the appellant Md. Siraj did not accept the ownership of the said bag at the time of his examination under Section 313 of Code of Criminal Procedure. On the contrary he totally denied about such recovery of any bag, fire arm or cartridges from his possession. In that view of this case, no benefit can be given to the appellant Md. Siraj for not having any lock of the bag or for availability of such type of bag in open market. It has been categorically pointed out about the identity of such bag by prosecution witness no.7 as having inscription of the name captioned "Reebok". That clearly goes to show that the case of the defence/appellant cannot be accepted in any view of such recovery since the appellant Md. Siraj never admitted to have any such bag in his possession. Prosecution witness no.8 Chameli Kundu also accompanied the police officer at the time of such seizure of bag, fire arm and cartridges from the possession of Md. Siraj. On careful scrutiny of such evidence of prosecution witness no.8 we do not fine any material so as to discard the recovery fire arm and cartridges from the possession of Md. Siraj.

Prosecution witness no.9, J. P. Singh was posted at Arms Department at the relevant point of time as officer in charge of such section of Detective Department. On the basis of a requisition (exhibit 10) he examined the fire arm and the cartridges and found that the six chambers country made revolver and the cartridges were in working order and live respectively and accordingly the said arms and ammunitions would come within the purview of the Arms Act . Prosecution witness no.9 is a police officer having requisite experience in examination of arms and ammunitions and at the relevant point of time he was posted as the officer in charge of that section. This witness has had no enmity with the appellant and, therefore, there was absolutely no reason on the part of such witness to depose falsely against all the appellants so as to rope Md. Siraj in a false case.

Therefore, the prosecution has been able to show that such fire arm and cartridges were recovered from the possession of Md. Siraj and the said cartridges were live and the six chambered country made revolver was in working condition. The part of booty was recovered from the possession of Raju Sing. Prosecution witness no.10 Benode Balmiki, prosecution witness no.11 Swapan Chakraboty, prosecution witness no.13 Md. Mukhtar, prosecution witness no.14 Habul Kumar Acharjee, prosecution witness no.15 Md. Nasim, prosecution witness no.16 Pratap Biswas, prosecution witness no.17 Md. Anowar, prosecution witness no.18 Mithu Begum, prosecution witness no.19 Sk. Abul Hossain, prosecution witness no.20 Suman Kumar Naskar and prosecution witness no.21 Ziaul Mustafa Alquadri were all present at the time of recovery of stolen money from the possession of the appellants. We have gone through the evidences of the aforesaid witnesses minutely and found that the witnesses have fully supported the case of the prosecution in respect of the recovery stolen amount or stolen money from various appellants at various point of time.

There is absolutely nothing in the cross-examination of the aforesaid witnesses to hold that the aforesaid witnesses out of their previous grudge or that out of enmity against the appellants deposed falsely against the appellants. The witnesses have proved their signatures on the seizure lists, as well as on the wrapper by which the stolen money was wrapped at the time of seizure by the investigating officer. No stretch of imagination, it can be said that the prosecution has procured the aforesaid witnesses including the police officers in order to rope in the appellants falsely in a case of dacoity.

Time and again the Hon'ble Apex Court has reminded that now a days the witnesses are reluctant to come forward in order to avoid the grilling of the cross examination in court as well as the problems to be faced at the time of deposing before a trial Court. However the witnesses mentioned hereinabove came forward to help the case of the prosecution and they have been able at least to prove beyond all shadow of doubt that such stolen amount/money was recovered from the possession of the appellants.

Prosecution witness no.22 Praloy Bhattacharjee, filled up the formal FIR and went to the spot with approval of the then officer in charge. Thereafter the witness examined some witnesses and seized broken pad lock from the shop

room. The prosecution witness no.23 the investigating officer Fiyaz Ahmed had actually completed the investigation and filed charge sheet. Prosecution witness no.12 Arjun Mukherjee learned Judicial Magistrate held Test Identification Parade at Presidency Correctional Home in respect of Md.

Siraj, Sunny Singh, Md. Habib, Raju Singh, Basu Chowdhury and Ganga Pradhan. The witnesses Riponjit Ghosh, Monotosh Das and Noor Alam identified all the suspects in his presence and thereafter he recorded the factum of holding Test Identification Parade in the form of a report vide exhibit-14. Learned advocates appearing on behalf of the appellants have vehemently challenged the mode and manner of Test Identification Parade by the learned Magistrate. On careful scrutiny of the evidence of prosecution witness no.12, it appears that the learned Magistrate had conducted the Test Identification Parade after taking all sorts of precaution as contemplated in law. The Test Identification Parade was conducted inside the Presidency Correctional Home and there was absolutely no chance of any collusion of learned Magistrate with the investigating agency. The witnesses have specifically stated before learned Magistrate that all the suspects were present at the time of committing dacoity and they took away Rs.2,30,000/- on gun-point from the vault of M/s. Uttam Enterprise on 31st January, 2009. On careful scrutiny of such evidence of prosecution witness

no. 12 we find that the suspects also did not complain anything before the learned Magistrate at the time of holding Test Identification Parade and there was absolutely no illegality in holding such Test Identification Parade by learned Magistrate. Accordingly, we may safely rely on such report of learned Magistrate, who held Test Identification Parade vide exhibit 14.

Test Identification Parade should be conducted soon after the arrest of the accused. In the case under reference, the appellants were placed for Test Identification Parade after about 27 days from the date of their arrest.

We do not find any cross-examination of learned Magistrate(P.W. 12) and investigating officer(P.W 23) as to why such Test Identification Parade was held after 27 days from the date of arrest. On scrutiny of the evidences of aforesaid witnesses and the Lower Court Record, we find that the circumstances were beyond the control of the investigating agency to hold such Test Identification Parade by learned Magistrate. The investigating agency cannot direct or request learned Magistrate to hold Test Identification Parade, but such prayer for holding Test Identification Parade was submitted at the earliest.

The witness had ample opportunity to watch the appellants at the time of occurrence and to observe the physical features of the appellants.

Therefore, mere delay in holding Test Identification Parade pales into insignificance.

The Apex Court has upheld the conviction accepting the Test Identification Parade(held after one month eight days from the date of arrest) by rejecting the contention of the appellants that the accused were shown to the witnesses during investigation. Some delay in holding Test Identification Parade was not attached importance. M. A. Sultan Vs. State of A.P. (2008)

11 SCC 201(203).

Three witnesses namely Riponjit Ghosh, Monotosh Das and Noor Alam have identified all the appellants at the time of Test Identification Parade. Secondly, the stolen money has been recovered from the possession of the appellants and such fact of recovery has been proved by the prosecution beyond all shadow of doubt by producing a good number of witnesses.

Learned Public Prosecutor shall determine the number of witnesses to be produced and examined in a sessions trial before the trial Court. This is the exclusive jurisdiction of learned Public Prosecutor. Unless the Court finds that some witnesses are required to be produced to unearth the actual state of affairs, the Court cannot interfere with such discretion of the Public Prosecutor. On the contrary, if the defence finds it convenient to examine any of the witnesses, who has not been examined by the prosecution, the defence is at liberty to examine such witnesses as defence witness in order to project the actual state of affairs before the trial Court. In other words, the accused cannot compel the public prosecutor to examine all the witnesses, who have been mentioned in the charge sheet. Therefore, the argument that all the charge sheeted witnesses have not been examined, would be of no help to the case of the appellant. No case has been made out by the appellant to show that non-examination of such witnesses has cast serious doubt in the case of the prosecution.

Similarly, it is incumbent upon the investigating officer to examine the natural and necessary witnesses during investigation so as to form a definite opinion about the occurrence. The investigation is the absolute domain of the investigating officer under Section 156(2) of the Code of Criminal Procedure. No one can compel the investigating officer to examine all the witnesses, who assembled immediate after the occurrence at the place of occurrence. Therefore, the argument of learned Advocates of the appellants on that score also fails. Necessary and important witnesses have been examined by the investigating officer during investigation and such discretion of investigating officer cannot be questioned at the time of trial.

There is no definition of any independent witness. Only the natural witnesses are to be produced in order to prove a criminal case. Prosecution witnesses number 4, 5 and 6 are most natural witnesses who were present at the time of such occurrence and in fact, who had seen the commission of dacoity by the appellants. Therefore, the said witnesses are most natural witnesses to the occurrence. Non-examination of any other witness accordingly will cast no doubt to the case of the prosecution.

Learned Advocate for the appellant further contended that some of the appellants have already completed the incarceration for about 6/7 years and considering their length of detention, their appeals may be allowed. In a case of this nature, we are unable to accept such contention of learned Advocate for the appellants.

In the premises set forth above we do not find any merit in the appeals mentioned herein above and accordingly all the appeals being CRA no. 300 of 2013, CRA no. 362 of 2013, CRA no. 442 of 2013 and CRA no. 521 of 2013 are dismissed.

It is apparent from the materials on record that except Md. Siraj all other appellants are on bail. The bail bonds of such appellants are cancelled and they are directed to surrender forthwith in the trial Court to serve out the remaining part of the sentence. Learned trial Court is also directed to take appropriate coercive measures forthwith if the appellants fail to comply with the directions given herein above.

Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.