SUSHANTA DATTA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Appeals are directed against the judgement and order dated 16.02.2010 passed by the learned Additional District and Sessions Judge, Sealdah, South 24 Parganas, in Sessions Trial No. 3(5) of 2009 convicting the appellants in both the appeals for commission of offence punishable under Section 392 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for seven years and to pay fine of Rs.10,000/ - only, in default to suffer simple imprisonment for one year more for the offence punishable under Section 392 of the Indian Penal Code and convicting appellant no. 2 (Kachi Pandit) in CRA 287 of 2010 for commission of offence punishable under Section 397 of the Indian Penal Code and under Section 25(1B)(a) of the Arms Act and sentencing him to suffer rigorous imprisonment for seven years for the offence under Section 397 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for one year and to pay a fine of Rs.2,000/ - in default to suffer further simple imprisonment for three months more for the offence under Section 25(1B)(a) of the Arms Act, all the sentences to run concurrently.

(2.) Prosecution case, as alleged, against the appellants as follows : On 31.03.2009 at about 03.15 hours Smt. Minati Datta (PW 4) noticed that four persons, one armed with bhojali surreptitiously entered her room. As she tried to raise alarm one of the miscreants threatened her with bhojali and another snatched away gold chain, ear ring, churi, nose pin, mobile phone etc. from her person. They ransacked the suitcase, showcase and took away three nose pins. Thereafter one of them stood in front of her with a bhojali. Other three miscreants went to the adjoining room. There were two steel almirahs in the adjoining room. One person came back and demanded the keys of the almirah. Minati (P.W. 4) told him that key was not with her, he went away and after a while defacto complainant heard the sound of opening the almirahs from the adjoining room. In the mean time, hearing the hue and cry, elder sister of the defacto complaint viz. Suniti Pain (PW 5) came downstairs and saw the miscreants. She started shouting 'chor, chor' and thereafter the accused persons fled away through the grill gate one by one. Suniti Pine found that the almirahs were open, the articles have been ransacked and on inspection she found that the bundle containing ornaments like gold chain, ear ring, six pieces of churi and gold ring were missing. Minati (PW 4) noticed that the padlock of the grill gate was lying broken. Police attached to the Manicktala Police Station were contacted over phone and P.W. 4 lodged written complaint with the police when them came to the P.O. which was treated as first information report being Manicktala Case No. 121 dated 31.03.2009 under Sections 392/397 of the Indian Penal Code. In the course of investigation, the appellants were arrested and stolen articles were recovered from their possession. In test identification parade they were identified by P.W.s 4 and 5. In conclusion of investigation, charge - sheet was filed against the appellants under Section 392/397 of the Indian Penal Code and under Section 25(1B)(a) of the Arms Act against the appellant no. 2, Kachi Pandit. After obtaining the opinion of the arms expert a supplementary report was filed. The case, being a sessions triable one, was committed to the Court of Sessions, Alipore, South 24 Parganas and transferred to the Court of Additional Sessions Judge, Sealdah, South 24 -Parganas for trial and disposal. Charges were framed under Section 392/397 of the Indian Penal Code against the appellants and under Section 25(1B)(a) of the Arms Act against the appellant no. 2, in CRA 287 of 2010, namely Kachi Pandit. The appellants pleaded not guilty and claimed to be tried. In the course of trial prosecution examined as many as twelve witnesses and exhibited a number of documents. Defence of the accused persons was one of innocence and false implication. In conclusion of trial, the learned Trial Judge by judgement and order dated 16.02.2010 convicted the appellants for commission of offences punishable under Section 392 of the Indian Penal Code and sentenced them for rigorous imprisonment for seven years and to pay fine of Rs.10,000/ - only, in default to suffer simple imprisonment for one year more for committing offence punishable under Section 392 of the Indian Penal Code and further convicted appellant no. 2 (Kachi Pandit) in CRA 287 of 2010 for commission of offence punishable under Section 397 of the Indian Penal Code and under Section 25(1B)(a) of the Arms Act sentenced him to suffer rigorous imprisonment for seven years for commission of offence punishable under Section 397 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs.2,000/ - in default to suffer further simple imprisonment for three months more for the offence punishable under Section 25(1B)(a) of the Arms Act, all the sentences to run concurrently.

(3.) Mr . Gupta, learned Counsel appearing for the appellant in CRA 446 of 2010 and as amicus curiae in CRA 287 of 2010 submits that there are patent absurdities and/or inconsistencies in the prosecution case. It is not clear as to whether there was a grill gate in the veranda of the first floor of the house of P.W. 4. P.W. 1, plan maker, did not notice such a grill gate in the verandah. He submits that conduct of P.W. 4 to sleep with the lights burning in her room is highly artificial and cannot be believed. He further submits that there was nothing to show as to how the miscreants gained access to the verandah on the first floor as the locks on the ground floor and the mezanine floor had not been broken. He submits that F.I.R. had been altered to include description of the appellants. He criticizes the test identification parade on the premise that there was inordinate delay in holding the test identification parade and the fact that the appellants had complained to the learned Magistrate (P.W. 12) after holding of test identification parade and they had been shown to the witnesses while in police custody. He submits that seizure of the stolen articles and the bhojali was doubtful as the independent witnesses were not local persons. All the seized articles had not been identified and nothing had been placed on record to establish the ownership of P.Ws 4 and 5 qua the seized articles. He accordingly prays for acquittal of the appellants.