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Subhas Bhattacharyya and ors. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1985CriLJ1807
AppellantSubhas Bhattacharyya and ors.
RespondentThe State
Cases ReferredRamkishan Sharma v. State of Bombay. It
Excerpt:
- gobinda chandra chatterjee, j.1. there are 7 appeals before us, appeal no. 268 of 1981 has been preferred by the accused-appellant subhas. the appeal bearing no. 279 of 1981 has been preferred by the accused-appellant probhas. the next appeal bearing no. 280 of 1981 has been preferred by the accused-appellant dwijendra. criminal appeal no. 300 of 1981 has been filed jointly by the accused-appellants sadhan and anil. the accused-appellant phani kar has preferred the criminal appeal no. 310 of 1981. criminal appeal no. 335 of 1981 has been preferred by the accused-appellant sujit. kalirlada who is in jail has filed the jail appeal bearing no. 430 of 1981. we have heard all the appeals analogously and the following judgment shall govern all these 7 appeals. all the aforesaid 7 appeals are.....
Judgment:

Gobinda Chandra Chatterjee, J.

1. There are 7 appeals before us, Appeal No. 268 of 1981 has been preferred by the accused-appellant Subhas. The appeal bearing No. 279 of 1981 has been preferred by the accused-appellant Probhas. The next appeal bearing No. 280 of 1981 has been preferred by the accused-appellant Dwijendra. Criminal Appeal No. 300 of 1981 has been filed jointly by the accused-appellants Sadhan and Anil. The accused-appellant Phani Kar has preferred the Criminal Appeal No. 310 of 1981. Criminal Appeal No. 335 of 1981 has been preferred by the accused-appellant Sujit. Kalirlada who is in jail has filed the jail appeal bearing No. 430 of 1981. We have heard all the appeals analogously and the following judgment shall govern all these 7 appeals. All the aforesaid 7 appeals are directed against the judgment dt. 18-7-81 passed by Shri Deb Kumar Chakraborty, Additional Subordinate Judge, Asansol, in Sessions Trial No. 47 of 1980.

2. The prosecution case as presented before the learned Additional Sessions Judge was as follows:

Getting an information from the co-accused Probhas that a cheque for Rs. 18,84,119.25 was going to be encashed by C. L. W. from the local State Bank of India, Chittaranjan Branch, all the accused-appellants entered into a criminal conspiracy with one other to commit dacoity in the State Bank in an opportune moment. Now on 7th Jan, 1971 at about 11.30 a.m. P.W. 6 Priyabrata Mukherjee, Assistant Cashier of Chittaranjan Locomotive Works (C. L. W.) accompanied by two R. P. F. Guards namely, Hari Narayan Ram and M. S. Chowhar (P. W. 36) and two peons, Sankar Ghose and Dinabandhu Mondal (P.W. 5) came to State Bank of India, Chittaranjan Branch to encash the cheque for Rs. 18,84,119.25 on behalf of C. L. W. to enable the latter to make payment to its employees.

3. The two R. P, F. guards had muskets with each of them P.W. 2 Ash Bahadur Gurang at that time was on duty with one S. B. B. L. gun in front of the Cash Counter of the State Bank as a Security Guard of the Bank, P.W. 35 Ram Sankar Tewari on that day was one of the Cashiers of the Bank and he was entrusted with the disbursement of the cash to Shri Mukherjee, the said Assistant Cashier of C. L. W. under the said cheque. Just before the incident, the accused-appellant Probhas (senior cashier of the Bank) was engaged in a conversation with some of the miscreants who had bombs in their possession. At about 1.10 p.m. on that day after the entire cash under the said cheque was handed over to Shri Mukherjee, the Assistant Cashier of C. L. W. on the floor of the Cash Counter, Shri Mukherjee with the assistance of the said two Peons began to put currency notes inside the cash boxes brought earlier by him from the office of C. L. W. In all there were three cash boxes. When two of the boxes were already filled up and the third box was being filled up with the currency notes and the amount of Rs. 18,17,00/- was already kept inside those boxes, the accused persons suddenly appeared within the Bank premises being armed with Rifle, Revolver and bombs and they hurled 10/12 bombs both inside and outside the Bank premises, caused severe injuries to the R. P. F. Guards, snatched away the S. B. B. L. Gun No. 1694 from the State Bank's Guard, broke open the glass pane of the Cash Counter with the but of the Rifle, sealed cash counter, lifted away all the three boxes loaded with the currency notes and thereafter decamped with the booty in a black 'Ambassador Car parked outside the Bank premises. The miscreants also snatched away the muskets of the two R. P. F. Guards. The Guard of the Bank as also the two R. P, F. Security Guards were seriously injured and they had to be removed to K. G. Hospital, Chittaranjan for treatment for their injuries. Hari Narayan Ram one of the R. P. F. Guards, however, succumbed to the injury in that Hospital, P.W. 1 A. K. Banerjee, the Agent of that State Bank immediately informed Chittaranjan Police Station over phone. Thereafter S. I. N. R. Biswas (since deceased) the then 0. C, Chittaranjan Police Station being accompanied by P.W. 45, S. I., Madan Roy and other officers and force arrived at S. B. I, Chittaranjan Branch when P.W. 1 Sri Banerjee handed over a written complaint (Ext. 1) regarding the incident to the Officer-in-charge, Chittaranjan Police Station. The Q. C. Chittaranjan Police Station forwarded the complaint to the Police Station and on receipt of the same the Duty Officer drew up a formal F. I. R. (Ext. 2) on the basis of which Chittaranjan Police Station Case No. 1 dt. 7-1-71 was at once started under Section 4/5 of the Explosive Substance Act and under Section 25 of the Arms Act against the 5/6 unknown young men for committing dacoity in respect of Rs. 18,71,000/- and for committing murder of the said R, P. F. Guard. In course of the investigation on that very date a black Ambassadar Car (W. M. G. 1281) was found out from a hilly place in Maithea Dam Area. This car was used by miscreants in arriving at the Bank premises before the incident and was also used by them at the time of going away with the stolen articles. In course of investigation again heavy bundles of currency notes amounting to Rs. 2 lakhs and odd were recovered from different places as shown by the accused-appellant Dwijendra, Phani Kar and others. Two of the cash boxes which were removed by the miscreants were also found out from a place shown by the accused Subhas. The S.B.B.L. Gun and the muskets were also recovered from places as pointed out by the accused appellants Anil and Dwijen Chandra.

4. On the basis of the aforesaid materials the accused Probhas Misra was charged under Section 120B/396 of the I.P.C. accused-appellant Anil Dutta and Dwijen Chandra were charged under Sections 396, 120B/396 and 412 of I. P. C. and under Section 25(l)(a)/35 of the Arms Act. The accused Sadhan, Kalipada Subhas, Sujit were charged under Sections 396, 120B/396 of the I.P.C. and the accused-appellant Phani Kar was charged under Sections 396, 120B/396 and 412 of the I. P. C. In all 48 P.Ws. were examined during the trial. After hearing the witnesses and the argument advanced by both the sides, the learned Additional Sessions Judge convicted Probhas of the charge under Section 120B/396 of the I. P. C. The accused Subhas was convicted under Sections 396 and 120B/396 of the I. P. C. The accused Kalipada was convicted under Sections 396 and 120B/396 of the I. P. C. The accused Sadhan Dhar was convicted under Sections 396 and 120B/396 of the I. P. C, Accused Anil Datta was convicted of the offences under Section 396 of the I. P. C. and under Section 25 read with Section 35 of Arms Act. The accused Phani Kar was convicted of the offences under Sections 396 of I. P. C. Accused Dwijen Chandra was convicted of the offences under Section 396 of the I. P. C. and under Section 25 read with Section 35 of the Arms Act. The accused appellant Sujit was convicted of the offence under Section 396 and 120B/396 of the I. P.C.

5. The learned Additional Sessions Judge sentenced Probhas to undergo R. I. for life term and to pay a fine of Rs. 500/- in default to undergo further R. I. for one month for the offences under Section 120B/396 I. P. C. The accused Subhas was sentenced to undergo R. I. for life term and to pay a fine of Rs. 500/- in default to undergo further R. I. for one month of each of the counts under Sections 396 and 120B/396 of the I P. C. Accused Kalipada was sentenced to undergo R. I. for life term and to pay fine of Rs. 500/- in default to undergo further R. I. for one month for each of the counts under Sections 396 and 120B/396 of the I. P. C. The accused Sadhan was sentenced to undergo R. I. for life term and to pay fine of Rs. 500/- for each of the counts under Sections 396 and 120B/396 of the I. P. C. Accused Anil Dutta was sentenced to undergo R. I. for life term and to pay fine of Rs. 500/- in default to undergo further R. I. for one month and also R. I. for two years for the offence under Section 25 of the Arms Act. The accused Phani Kar was sentenced to undergo R. I. for life term for the offences under Section 396 of the I. P. C. and to pay fine of Rs. 500/- in default to undergo further R. I. for one month. Accused Dwijendra Chandra was sentenced to undergo R. I. for life term and pay fine of Rs. 500/- in default to undergo further R. I. for one month for the offence under Section 396 of the I. P. C. and to undergo R. I. for 2 years for the offences under Section 25 of the Arms Act. Accused Sujit was sentenced to undergo R. I. for life term for each of the counts under Sections 396 and 120B/396 of the I. P. C. The learned Additional Sessions Judge was pleased to order that the sentences of each of the accused were to run concurrently.

6. Being aggrieved by the aforesaid conviction and sentences the 8 appellants have preferred these appeals before us, for redressal of their grievances.

7. The accused persons be it noted have not set up any special plea. They simply took the usual plea of innocence. Be it also noted that on behalf of the accused-appellants the fact that the State Bank of India, Chittaranjan Branch was raided at the time, place and in the manner as alleged by the prosecution was not also challenged during evidence at the trial before the learned Additional Sessions Judge, Asansol. They simply challenged the allegation that they took part in the commission of dacoity or that they had anything to do with the alleged dacoity. Thus the evidence of P.W. 6 Priyabrata Mukherjee, Assistant Chief Cashier of C.L.W. proved the occurrence of dacoity in the manner as alleged by the prosecution. In his evidence Priyabrata gave out that he happened to be at S. B. I., Chittaranjan Branch on 7-1-71 towards the noon for the purpose of encashing a cheque amounting to Rs. 18,84,119.26 for making payment to the employees of the C. L. W. He further disclosed that Dinabandhu Mondal and Sankar Ghose two of their peons and two armed guards had accompanied them in their vehicle straight up to the Bank. He also gave out that they had taken with them three cash boxes for the purpose. He further disclosed that the cashier of the Bank after counting kept the currency notes on the floor of the cash enclosure for facility of delivery, that sometime before 1 p. m. they started filling up those cash boxes on the floor of the cash enclosure, that when the filling of the two cash boxes with the cash money was complete and the 3rd box was going to be fill ed he heard explosion of bombs near the bank premises, both from outside and inside the bank. He also heard sound of breaking the glass partition wall standing in front of the cashier's table. He noticed one miscreant lifting one cash box. He also saw other miscreants removing the other cash boxes. Subsequently, he found all the three cash boxes removed therefrom by the miscreants. He found one of the armed guards lying seriously injured at the main gate of the bank. The other guard was also injured. One of the guards ultimately expired in the local hospital. The witness identified the three cash boxes (Ext. I to III) which were subsequently recovered from a Jungle.

8. We have extensively made use of the above evidence of the witness only to show that on behalf of the accused-appellants no attempt whatsoever was made during cross-examination at the trial to challenge the aforesaid testimony. While describing the parts played by the dacoits on 7-1-71 the learned Additional Sessions Judge, Asansol has characterised the accused Kalipada alias Arun Guha as the 'main pivot of the incident and he managed everything'. Kalipada has filed appeal No, 430/81 from Jail. None argued his case before us. We have, therefore, taken special care so far as Kalipada is concerned lest he felt prejudiced in any way. Against Kalipada the main witness seems to be P. W. 13 Arabinda Patra, the driver of the black Ambassador car, WBG 1281. In his evidence Arbinda disclosed that Kalipada met him at Calcutta giving out that they would have to go to Durgapur to purchase scrap iron on 25-12-70. Kalipada was then accompanied by accused Sujit aliab Dilip and accused Sadhan. Arabinda's further evidence is that on 25-12-70 he had to come over to Durgapur along with these three accused persons. They all spent the night in a hotel at Durgapur, Next morning they started for Calcutta again and on the way he was told by Kalipada that their purpose was not served and that they would have to come again on 5-1-71. On 5-1-71 Kalipada, Sujit and Sadhan went to Durgapur and then to Chittaranjan by the selfsame black Ambassador car which was being driven all the way by Arbinda, On 6-1-71 they all spent the night at the Mihijam Hotel at Chittaranjan. The manager of that Hotel, P.W. 23 deposed by saying that Kalipada alias Arun Guha boarded their hotel by coming over there with a black Ambassador car, that they left this hotel on the morning of 7-1-71. Arabinda correctly identified Kalipada, Sadhan and Sujit before the Trial Court because he had the opportunity to mix up with them for days and nights together. P.W. 7 Pabitra Ghose deposed before the learned Court by saying that just before the occurrence he had seen an aged man sitting on the bench kept for the visitor inside the Bank. Pabitra's evidence read with the evidence of Shri Deb, the Judicial Officer (P.W. 29) shows that Pabitra could well identify Kalipada at the T. I. Parade. From P.W. 23, the Manager of the Hotel it is gathered that Kalipada before boarding their hotel along with his associates had to sign in the hotel register (vide Ext. 21) P.W. 7 Pabitra rightly described Kalipada as an aged man because it appears from the record that at the time of trial he was aged round about 45 and compared to all other accused persons he was far advanced in age. No wonder therefore, that Pabitra would be able to identify Kalipada before the learned Addl. Sessions Judge. We have carefully perused the evidence adduced by all the witnesses aforesaid viz. P.W. 7, P.W. 12, P.W. 23 and P.W. 29. There is nothing in their cross-examination to suggest that they had any motive whatsoever to depose falsely against Kalipada. It is interesting to note that in his statement under Section 313 Cr, P. C. Kalipada virtually confessed his guilt by saying that he had 'nothing to state' when it was pointed out to him that it was he .who had hired the black Ambassador car by which the dacoity under consideration was committed (vide question No. 4 and 5). Rightly the learned Additional Sessions Judge found Kalipada guilty and 'Sentenced Kalipada to undergo R.I. for life term and to pay fine of Rs. 500/- in default to undergo further R. I., for one month for each of counts under Section 396 and 120B/396 1. P. C.

9. The next accused appellant before us is Probhas Misra. His case (appeal No. 279/81) has been argued before us by the learned Counsel Mr. Sankardas Banerjee. The main witness who spoke against Probhas is P.W. 7, Pabitra Kumar Ghose. Pabitra is a local Electric Fitter. Just before the incident he happened to be inside the State Bank of India, Chittaranjan Branch for the purpose' of encashing his personal cheque amounting to Rs. 18.48. He got this cheque as reward from the local Technical School for his work as Fitter. Pointing to the suit case (Ext. IV) he stated that at that time he found two young men were then engaged in offering their respect to the aged man Kalipada. One of the two young men then took out two bombs from that suitcase. Just at that time he noticed Probhas Misra (whom he knew before) coming out from his cash enclosure. Probhas talked with these young men in a very low voice and after a few minutes he went out. Immediately thereafter the bombs were burst causing injury to the R. P. F. Guards whereby the guards fell down on the floor. People inside the Bank thereafter started fleeing away out of fear. The witness Pabitra being fear striken came outside the Bank saw a black Ambassador Car parked at the main gate and soon he marked all the miscreants including the accused Subhas, Sadhan and Dwijen decamping with the three cash boxes by that car. Pabitra's further evidence is that prior to the incident on some occasion he had seen Probhas Misra taking his meal along with the accused Subhas and Sadhan in the local Mihijam Hotel. P.W. 7 is also corroborated by P.W. 4 the driver of the C. L. W. when the latter disclosed that immediately after the occurrence he could see Probhas Babu, the cashier leaving the Bank compound and proceeding towards the office of the C. L. W. At that time Probhas babu was looking somewhat nervous.

10. Mr. Sankardas Banerjee, the learned Counsel has invited our attention to the concluding part of the cross-examination of the Bank Cashier Shri Tewari, P.W. 35 and has argued that even the main cashier had no idea as to on which exact date that heavy cheque would be encashed that therefore Probhas babu, accused appellant could have no idea beforehand that the cheque would be encashed on 7-1-71 and that therefore, it was not possible for his client to enlighten the other accused person regarding the date of commission of the offence. In other words, Mr. Banerjee has argued that the prosecution has simply failed to prove that Probhas had entered into any conspiracy whatsoever along with the other accused persons in connection with the incident in point. In this connection our attention has been invited to two decisions reported in AIR 1935 Cal 580 : 36 Cri LJ 1322 (SB) (Prankrishna Chakraborty v. Emperor) 34 Cri LJ 1070 : AIR 1933 Cal 776 (1). It has been argued on the score of the aforesaid decisions that 'mere evidence of association is not sufficient for an inference of conspiracy.' With respect to Mr. Banerjee we must say that the facts of this Bank dacoity case with which we are here concerned are somewhat different. This case has got special features of its own. Probhas as it appears from the evidence on record is a senior cashier of the State Bank of India. We fail to understand and appreciate as to why he would be taking his meal with some of the accused persons at the Mihijam Hotel although the accused persons were not at all residents of the locality. The social status including the age, experience and educational qualification of Probhas does not appear to be similar to that of any of the accused persons. Therefore, the only conclusion which was rightly arrived at by the learned Additional Sessions Judge was that the frequent mixing and hobnobbing of Probhas with the accused persons was for the purpose of fixing the target date in connection with the commission of dacoity. In this connection, we may recall the evidence adduced by the taxi driver that on the way he was told by Kalipada that their visit to Durgapur proved to be useless on 25-10-70 and that they were therefore required to visit Durgapur over again next week. This meant and implied that the cheque was going to be encashed next week.

11. Not only P.W. 7 found Probhas taking his meal along with the accused persons a few days before the occurrence on some occasions but that he also found Probhas coming out of his cash enclosure just before the occurrence. It is difficult to understand why and for what reason Probhas to came outside his office enclosure. What necessitated him to talk to those two young men who had bombs in their hands? The learned Additional Sessions Judge construed the departure of Probhas from the Bank as 'a green signal'; for it is just at that time that the bombs were hurled. The learned Additional Sessions judge rightly observed that in connection with such case of Bank robbery the parts played by the cashiers or the like officers are full of significance. The learned Additional Sessions Judge was confident that but for his help and guidance the dacoity could not have been committed. The learned Additional Sessions Judge had the opportunity to see the P.Ws. face to face and to hear them giving evidence. We do not think that he misread their sworn and disinterested testimony in any way. We are, therefore, unable to accept the contention of Shri Banerjee, the learned Counsel that Probhas's association with some of the accused persons did not convey any meaning and significance at all. We find that the association of Probhas with others in the present case was direct, active and conspiring in nature. His conduct immediately before the raid was indicative of his active involvement in the occurrence. In our opinion, therefore, Probhas was rightly convicted of the offence under Section 120B/396 I. P. C. He was sentenced to undergo R. I. for life term and to pay fine of Rs. 500/- in default to undergo further R. I. for one month. We do not think that imposition of these sentences requires any modification.

12. From the evidence on record it appears that Subhas the accused-appellant was thick and thin with both Kalipada and Probhas. That is why P.W. 7 marked that on some previous occasions Subhas was talking with Probhas Misra while taking their meals at the local Mihijam Hotel P.W. 7 also had seen Subhas along with others decamping with the three cash boxes by the black Ambassador Car. P.W. 7 Pabitra was confident that he knew Subhas from before the occurrence. Pabitra therefore correctly identified Subhas in court. The evidence of Mrinal (P.W. 34) read with the evidence of the learned Judicial Officer (P.W. 29) who held the T. I. Parade clearly proves that Mrinal could well identify Subhas at the T. I. Parade. It has been argued by Sri Dilip Kumar Datta, the Id. Advocate appearing on behalf of Subhas that mere identification at T. I. parade is no part of substantive evidence and that therefore, as P.W. 34 failed to identify Subhas at the trial his evidence may be ignored altogether. Reliance was placed in this connection in the case reported in : 1970CriLJ1149 Budhsen v. State of U. P. This case law relied upon by the defence, in our opinion rather helps the prosecution. For it has been observed in this reported case that identification in T. I. Parade does not constitute substantive evidence...there may, however, be exceptions to this general rule, when, for example, the Court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration'. We may like, to point out here that the learned Additional Sessions Judge was highly impressed by the testimony of this witness No. 34 seeing that he was straight forward enough to declare that with the lapse of 10 years time he had forgotten everything and that he was not in a position to identify the accused anymore in the court room. In our opinion, it is just probable and natural that a man should fail to identify a person whom he had seen 10 years ago. Indeed, in an unusual and exceptional case where the time gap in between the date of holding T, I. Parade and the date of commencement of the Sessions trial is long 10 years or so, the trial court in our judgment may if it so chooses rely upon the statements of recognition of the culprits made , by the witnesses in course of the T. I. Parade. , 13. The learned Advocate appearing for Subhas has drawn our attention to the decision reported in 1983 Cri LJ (SC 527) (sic) (Mysuddin v. State of U. P.) and has contended on the strength thereof that Test Identification Parade took place only 41 days after the arrest in that reported case, that in our present case the T. I, Parade was held long after one year 14 days and that the delay of only 41 days considered to be fatal for the prosecution in that reported case. We do not, however, see how the reported case helps the case of Subhas in any way. For in this case the learned Additional Sessions Judge it appears, based his judgment not merely on the fact of identification at the T. I. Parade. He relied upon the evidence adduced by other witnesses as well. There is for example, the evidence of P.W. 7 who was confident that Subhas along with others decamped with the booty. Subhas was again identified in court by P.W. 7 There again the evidence of P.W. 21 Krishna Paul read with the evidence of the I. O., P.W. 45 shows that Subhas led them to Danduya wherefrom two of the cash boxes were recovered. It is undisputed that these cash boxes were used for the purpose of filling them up with the currency notes of various denomination (vide unchallenged evidence of P.W. 6, Priyabrata) Ext. 21/2 is the seizure list wherein PW 23 had signed in presence of the I. O., PW 45 Ext. 21/2 contains the signature of Subhas as well. Subhas is not a resident of Danduya. It was not possible for him either to lead the Police Officers thereto make the discovery of the boxes therefrom unless he had taken part in the dacoity. It is indeed difficult to believe that all these witnesses viz. PW 7, PW 34, PW 21 and PW 45 were in collusion with one another just to do harm to Subhas with whom they had never the slightest enmity.

14. The learned Advocate appearing for Subhas has argued that the alleged statement of Subhas was never recorded by the I. O. and that therefore, that part of the statement under Section 27 Evidence Act leading to the alleged discovery of the cash boxes as purely inadmissible. Reliance was placed in this connection to the Ruling reported in : 1955CriLJ196 Ramkishan Sharma v. State of Bombay. It has been observed in the said Ruling that ' the prosecution cannot be permitted to rely on such evidence without placing admissible part of the information on the record. The information given by accused may be such which if scrutinised, shows only his remote connection and not direct connection. In such a situation evidence of the bare fact of information having been given may be admissible but such evidence may cause serious prejudice'. We are constrained to observe here that neither the learned Public Prosecutor conducting the sessions trial nor the Additional Sessions Judge thought it necessary to have on the record that part of the alleged statement of the witness which distinctly led to the discovery. We have searched the record in vain to find out what exact statement was made by the accused in that connection. Nevertheless, in our opinion, the discovery of the cash boxes read with the parole testimony of PW 7 and PW 34 was a pointer to the truth that the accused appellant Subhas had taken a very active part in the dacoity in point. We, therefore, hold that the learned Additional Sessions Judge took a very probable and natural view of the things in the matter of convicting Subhas in respect of the offences under Sections 396 and 120B/396 I. P. C. We also think that in sentencing Subhas to undergo R. I. for life term and to pay fine of Rs. 500/- the 'learned Additional Sessions Judge did nothing wrong in the overall facts and circumstances of the case.

15. Regarding the accused appellant Dilip alias Sujit the evidence adduced by the Subordinate Judge, Howrah Shri Qutubuddin PW. No. 32 is that the accused was correctly identified in his presence by the witness Aurobinda PW 13, the driver of the Taxi WBG 1281. Before the learned Subordinate Judge, Aurobinda gave out that Dilip alias Sujit was the person who hired his Taxi for about 4/5 days before the commission of dacoity, and kept the vehicle under his control throughout that period. From the evidence of Aurobinda PW 13, we gather that on 24-12-70 Dilip along with Sadhan and Kalipada had hired the taxi, came to Durgapur, spent the night at Durgapur Hotel, returned back to Calcutta again adding that they would have to come again on 5-1-71. We also gather that on 5-1-71 they came again to Durgapur from Calcutta, spent that night at the hotel in a body and that it was Dilip who took control of the taxi in the morning of 7-1-71 just before the commission of dacoity. All through these days Aurobinda got an opportunity to see and hear Dilip and to have meals with him. No wonder therefore, that Aurobinda would correctly identify all these accused persons on T, I. Parade. Aurobinda also correctly identified Dilip during trial, it is indeed absurd and fantastic to argue that it was not possible for Aurobinda to correctly identify this accused appellant. This is also true with regard to PW 7 Pabitra. From PW 7 we get that when he was entering into the State Bank, Chittaranjan Branch during midday he found the accused appellant Dilip standing near a black Ambassador car along with a revolver in his hand (vide also the evidence of PW 32.) From the evidence of P.W. 7, we further get that the 3 cash boxes were carried away by Subhas, Sadhan and Dwijen and that Dilip was also with them inside the Taxi. There is nothing in the cross-examination of P.W. 7 and 13 to show that these witnesses were enimically disposed of towards Dilip. It is interesting to note in this connection that the prosecution case regarding Dilip's journey by the selfsame taxi from far off Calcutta to Durgapur has not been challenged by Dilip. Rather it is his own statement under Section 313 Cr. P. C. that he had traversed all the way by that taxi as a helper of the driver, P.W. 13. The reason why the aforesaid statement under Section 313 Cr. P. C. was made by Dilip is not far to seek. For it would transpire from the evidence of the Judicial Officer, P.W, 27 Shri A. K. Bhattacharjee (Subordinate Judge) that finger print of Dilip was taken in his presence in four sheets (Ext. 23) and that these had been sent to the Expert, P.W. 24 for examination. The evidence of P.W. 24, Shri Dinabandhu Ghose, Finger Print Expert is that 'the photographed finger print representing the impression found on the trangulation wind screen glass of the Car No. WBG 1281 is identical with the specimen right middle finger print marked 'X' of Sujit alias Dilip.' Considering all these overwhelming evidence on the record appearing against the accused appellant Dilip, the learned Additional Sessions Judge, Asansol rightly convicted Sujit alias Dilip in respect of the offences under Sections 396 and 120B/396 I, P. C. and sentenced him to undergo R. I. for life term for each of the counts under Section 396 and 120B/396 I. P. C.

16. Like Sujit alias Dilip, the accused appellant Sadhan was too identified both by P.W. 7 and 13 during evidence at the trial before the learned Additional Sessions Judge, Asansol. From the evidence of P.W. 30 Shri D. K. Chatterjee, Metropolitan Magistrate we get that the accused Sadhan was correctly identified at the T. I. Parade by P.W. 13 Aurobinda. Before that Judicial Officer, P.W. 30, Aurobinda revealed that the car was hired by Kalipada who was accompanied by Sadhan, the accused appellant. We have already got it from the evidence of Aurobinda that for several days and nights all these persons viz. Sadhan, Kalipada and others roamed with him hither and either and even took their meals together. It is absolutely improbable that Aurobinda would fail to identify Sadhan correctly at the T. I. Parade or in evidence during trial before the learned Additional Sessions Judge. From the evidence of P.W. 7 we get that on previous occasions even before the commission of dacoity, Subhas, Sadhan etc. were having their meals at the Mihijam Hotel. It was this Sadhan who was found carrying away the cash boxes and decamping with the same by riding on the black Ambassador Car. The clear evidence of P.W. 7 is that 'previous to the incident I saw the accused Sadhan and Subhas Bhattacharyya but at that time I did not know their names.' Indeed the question of correctly identifying the accused appellant does not really arise in the overall facts and circumstances of the case, the accused appellant being widely known to the witness from sometime prior to the incident. The witness also had seen this accused appellant while he was in action at the time of commission of dacoity. Shri Balai Chandra Roy, the learned Advocate appearing for the accused appellant Sadhan has invited our attention to the Ruling reported in AIR 1935 Cal 580 : (36 Cri LJ 1322) (SC) and has contended thereupon that' mere evidence of association is not sufficient for an inference of conspiracy'. While dealing with the case of Probhas, it may be recalled, the very similar contention had been raised by Mr. Sankardas Banerjee, the learned Counsel for the appellant Probhas before us. This contention did not impress us for the reason already disclosed before hand. We do not think it necessary to reiterate our observation over again here. The learned Additional Sessions Judge had the opportunity to see and hear the eye-witnesses. In view of the facts and circumstances of the case we do not think that the learned Additional Sessions Judge committed any wrong in placing his credence upon these disinterested witnesses. We have perused the judgment passed by the learned Additional sessions Judge. The reasonings given by him in support of the judgment impressed us. We see no necessity of repeating those findings over again here. In our opinion the learned Additional sessions Judge was perfectly right in convicting the accused-appellant Sadhan of the charge under Section 396 and 120B/396 I. P. C. and sentencing him to undergo R. I. for life term and to pay fine of Rs. 500/- for each of the counts under Sections 396 and 120B/396 I. P. C.

17. The aforesaid accused-appellant Sadhan filed Criminal Appeal No. 300 of 1981 not alone but jointly with the accused-appellant Anil and both of them were defended before us by Shri Balai Chandra Roy, Advocate. Let us now deal with the case of Anil Dutta alias Amal Sarkar.

18. It would transpire from the materials on record that immediately after the incident of dacoity which took place towards the noon on the 7th Jan, 1971, all the police stations of Asansol Sub-division were alerted, then two days thereafter as per instruction of the then additional Superintendent of Police, Asansol, P.W. 46 Shri Indra Mohan Karmakar, the then S.I. of Police, Asansol being accompanied by other Police Officers viz. P.W. 47 Tapan Kumar Dey, S. I., Asansol P. S. and P.W. 48 Samir Mitra another S. I. went in a body to Rambundh Police Station, Hirapur wherefrom the accused-appellant Anil was arrested as per identification of the source who was also accompanied with them. The arrest took place during mid-night on the 9th Jan, 1971. Before P.W. 46 Anil made certain statements and these were recorded by the Police Officer. Thereafter Anil led all the three police officers to the house of one Sajal Sengupta and there he brought out a suitcase which was lying underneath a cot in that house. From the deposition of the three police officers aforesaid we get a vivid picture as to how a huge stock of currency notes was recovered from that house. All the three police officers are unanimous that it was Anil who himself unlocked the leather suitcase after bringing a key from the side pocket of a trouser of his own. It was Anil again who himself opened (hat leather suitcase and brought out one raskin bag closed with chain. Inside the bag were kept one revolver and one pistol. The word 'Pak' was found inscribed on that revolver. Each of the revolvers and pistol was found loaded with six rounds of bullets in its chamber. Their further evidence is that in the leather suitcase there was a piece of cloth which was taken out by Anil and behold a sum of Rs. 1,04,000/- all in ten rupee notes was visible underneath the piece of cloth. P.W. 46 Shri Karmakar's eye-sight was bad and so he could not identify all the aforesaid things before the learned Additional sessions Judge, Asansol. The identification was made successfully by the other witnesses. From P.W. 47 Shri Roy we get that the leather suitcase and the polythene bag were marked as Ext. 19 and 20 respectively. The pistol was marked as Ext. XXI and the revolver was marked as Ext. XXII one seizure list (10/1) was prepared on the spot. The lock and key were collectively marked as Ext. XXIV. P.W. 17 Aparesh Dubey, a local man of Hirapur was a witness of that seizure. From the evidence of the three police officers and specially from P.W. 46 it is gathered that the entire operation which took place at Rambundh was completed between 2.30 a. m. to 4.15 a. m. Towards the dawn of 10-1-71 all the three police officers were led by Anil to M. A. M. C. Colony, Durgapur. It is here that Anil identified the co-accused appellant Dwijen inside the quarter No. B.T.6 of that Colony as one of the associates of the incident of dacoity. The accused Dwijen was immediately arrested therefrom by the Police and we shall see hereinafter that in pursuance of his statement another huge stock of currency notes was recovered. From the evidence of P.W, 45 Shri Madan Mohan Roy another S. I. of Police we gather that before the then O. C. Shri N. R. Biswas, the accused Anil as also Dwijen made certain statements to the effect that they would show some properties if they were allowed to be taken to the area known as Sundarpahari, There at Sundarpahari all the police officers being led by Anil and Dwijen reached at the place known as Shindri hill at the height of 50 qbt. and therefrom inside a bush 2 muskets and one S. B, B. L. Gun were recovered. It is easy to comprehend now that unless Anil and Dwijen had participated in the incident of dacoity they could not have recovered the S. B. B. L. Gun (Ext. xviii) and the two muskets (Ext. xvi and xvii). It may be recalled here that just before the incident, two R. P. F. Guards were standing in front of the bank with two muskets. P.W. 2 Ash Bahadur was a security guard there at that time carrying that S. B. B. L. Gun, The S. B. B. L. Gun and the muskets which were recovered after the incident were found to be identical with the muskets and gun found earlier by the witnesses before the incident.

19. Mr. Balai Chandra Roy, learned Advocate appearing for the accused-appellant Anil has contended before us that the prosecution has not supplied us the joint statement alleged to have been given by the accused-appellant Dwijen and Anil and that we are thereby precluded from knowing as to the exact nature and extent of the statements which 'distinctly led' the alleged discovery. The grievance put forward by Shri Roy appears to us to be altogether groundless. For it would appear from the evidence of P.W. 45 that the then O. C. Shri Biswas before whom the statements were made died in the meantime, that Shri Biswas could not therefore be examined as P.W. in this case. P.W. 45 however, was very confident that both Anil and Dwijen gave out before them that they would be able to show further things if they would be taken to Sundarpahari area. The learned Additional Sessions Judge believed the statements of these four police officers and in the overall facts and circumstances of the case believed their testimony to be true. The circumstances were all revealing. The short span of time within which the recovery was made, the peculiarity of the place where-from the recovery was made, the manner and volumn of recovery including currency notes bearing initials of the Bank Officers and all these rightly persuaded the learned Additional Sessions Judge to hold that Anil was one of. the participants of the incident of dacoity.

20. We have seen that Anil led the police officers to Rambundh wherefrom a heavy amount exceeding one lakh in cash was recovered. We have also seen that it was Anil who led the discovery of the co-accused Dwijen. Appeal No. 280 of 1981 is the subject matter of the appeal preferred by this Dwijen. We have seen that Dwijen was arrested on the morning of 10-1-71 from his quarter No. B.T. 6 situate at M.A.M.C. Colony, Durgapur as led and identified by Anil Dutta. We get from the evidence of P.W. 46 and the other police officers that Dwijen made certain statements before those officers and led all the Police Officers to a Chowbachha (reservoir of water) and underneath the water thereof was kept a huge stock of currency notes wrapped in oil papers. Thus currency notes amounting to Rs. 1,20,000/- were recovered in this way. A seizure list was prepared on the spot (Ext. 12/1). From an adjacent quarter viz. from Quarter No. B.T.5 of the said colony an amount of Rs. 6,000/- was also recovered from a place as shown by Dwijen. These notes were seized under a separate Seizure list (Ext. 11/1). On 12-1-71 Dwijen led the police party comprised of P.W. 47 and others to quarter No. B.T. 6, M. A. M. C. colony, wherefrom another sum amounting to Rs. 40,900/- all in 10/- rupee notes was found out in pursuance of the statements made by Dwijen. The notes amounting to Rs. 1,20,000/- were exhibited before the court as Ext. xxvi. The notes amounting to Rs. 6,000/- were collectively marked as Ext. xxvii and the notes amounting to Rs. 40,900/- which were subsequently found out were marked before the Additional Sessions Judge as Ext. xxviii. The learned Additional Sessions Judge saw all these bundles of notes and found the initials of the bank officers over there in the covering portions. The learned Additional Sessions Judge rightly inferred that the circumstances relating to the peculiar concealment of the notes in a water reservoir wrapped up skillfully in oil papers could be known to a participant of dacoity and not to a passerby or a co-villager. Indeed the peculiarity of the case was a pointer to the truth that both Dwijen and Anil were participants of the incident of the dacoity.

21. There is also the direct evidence of P. W. 7 regarding the participation of Dwijen in the dacoity. From the evidence of P.W. 7 Pabitra it comes out that Dwijen was seen decamping with the cash boxes along with the other participants at the time of occurence.

22. Shri Sengupta, learned Advocate appearing for Dwijen has contended that Pabitra's identification 'of Dwijen in court is not credible inasmuch as he did not identify Dwijen at the T. I. Parade. With respect to Shri Sengupta we must point out here that Dwijen was found taking away the cash boxes at about 1 O'clock at noon. The place was just in front of the main gate of the State Bank of India, Chittaranjan Branch. P.W. 7 was then coming out from inside the Bank. It was most natural and probable for Pabitra to identify Dwijen in court room successfully, - he having clearly marked Dwijen at that particular time and place aforesaid. It has been contended by Shri Sengupta that at any rate the mere fact of recovery of the notes pursuant to the statement alleged to have been made by the accused-persons ought not to have been taken note of by the learned Additional Sessions Judge. Reliance was placed in this connection on the decisions reported in : 1979CriLJ1075 A very similar contention as aforesaid was raised also before the learned Additional Sessions Judge. The learned Additional Sessions Judge has given cogent reasons as to why he was pleased to overrule these objections. We have carefully perused the judgment given by the learned Additional Sessions Judge. The facts and circumstances relied upon by the learned Sessions Judge have been well defined and discussed in the body of the judgment, Indeed, we see no reason to come to a view different from that taken by the learned Additional Sessions Judge. The learned Additional Sessions Judge found both the accused-appellant Dwijen and Anil guilty of the offence under Section 396 I.P.C and also of the offence under Section 25 of the Arms Act and he sentenced them to undergo R. I. for life term for the offence under Section 396 I.P.C. and also for 2 years for the offence under Section 25 of the Arms Act. In our judgment the conviction and sentence are just, proper and fit in the over all facts and circumstances of the case.

23. Regarding the accused/appellant Phani Kar we find that he was convicted of the offence under Section 396 I.P.C. This accused/ appellant is in jail since 11-1-71. The learned Advocate Mr. Prasun Ghosh appearing for Phani has invited our attention to the evidence of three P.Ws. - P.W. 19, Radheshyam Mudi, P.Ws. 46 and 47 who are two Police Officers who took part in the investigation.

24. The prosecution case against Phani is that during investigation Phani made some statements and that in pursuance thereof from inside a cow-shed owned by one Hamid, two bundles of notes amounting to Rs. 1760/- were recovered. Shri Ghosh has argued that the statements alleged to have been made by Phani were not placed on record and that the alleged recovery of Rs. 1760/- was not proved either. Mr. Ghosh is right in his submissions. We find that the statements of Phani were not at all recorded and placed on record for the perusal of the learned trial Judge and for our scrutiny. We are, thus, precluded from examining as to whether the alleged statements 'distinctly led' to the recovery of the stolen articles within the meaning of Section 27 of the Evidence Act.

25. With regard to the alleged recovery of Rs. 1760/- the evidence in chief of Radheshyam is that the notes were produced as if by the accused-appellant. Radheshyam, however, did never identify Phani at the trial. In his cross-examination he, however, set up a new story altogether by stating in clear terms that the notes were produced by one Banik and that Banik fled away from the spot immediately after the production of the notes. This clearly implies that the recovery was made not by Phani but by a different person altogether. It is difficult to understand and appreciate as to why Phani was substituted in place of Banik whom the police officers could not catch in spite of their police force and ability. Moreover, there is absolutely no evidence on record regarding identification of Phani at the trial. We have already indicated before that the only public witness Radheshyam did not identify him. From P.W. 46, the 1. O. we gather that he was not in a position to identify the accused-appellant inasmuch as his eye-sight was defective (vide the cross-examination of P.W. 46). So far as the residual witness P.W. 47 is concerned, his free and frank assertion is that Phani did not lead them to the recovery at all. It is clear, therefore, from the above that the only allegation against Phani namely his alleged recovery of the stolen articles thus remains not proved on the record. Where the prosecution case is that the accused led to the discovery of some stolen articles and where in evidence during cross-examination of the prosecution witnesses it transpires that a different man X and not the accused led to that discovery, - the accused is entitled in law to get a clean acquittal. We are, thus, constrained to hold that in view of the state of evidence in the record, the learned Additional Sessions Judge ought not to have convicted the accused-appellant Phani in respect of the charge under Section 396, I.P.C.

26. This appeal should, thus, stand allowed.'

27. In course of the hearing of the 7 appeals, a petition was filed before us on behalf of C.L.W. with a prayer that the seized currency notes may be returned to the petitioner. This prayer was not opposed before us by the learned lawyers appearing on behalf of the 8 accused-appellants. It transpires from the body of judgment of the trial Court that the learned Additional Sessions Judge passed an order on 18-7-1981 directing return of the currency notes in favour of the C.L.W. This order should be affirmed and implemented.

28. In the result, Appeal Nos. 268 of 1981, 279 of 1981, 430 of 1981, 280 of 1981, 335 of 1981 and 300 of 1981 are dismissed on contest. The judgment of conviction and sentence passed in connection with these seven appeals is affirmed.

29. Appeal No. 310 of 1981 is allowed on contest. We find that the accused-appellant Phani Kar is not guilty of the offence under Section 396 I.P.C. The Judgment of conviction and sentence so far as this appeal is concerned is set aside. The accused-appellant Phani Kar be acquitted of the offence under Section 396 I.P.C. and he be set at liberty at once.

30. The order of the learned Additional Sessions Judge regarding the return of the seized currency notes in favour of C.L.W. is affirmed.

Nani Gopal Chaudhuri, J.

31. I agree.


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