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CALCUTTA HIGH COURT
GIRISH CHANDRA GUPTA AND KISHORE KUMAR PRASAD, JJ.
Rafikul Alam and Ors.
versus
The State of W. B.
C.R.A. No.34 of 2006,
Decided on : 17 -12 -2007.
CRIMINAL LAW - DAOCITY - IDENTIFICATION - EVIDENCE ACT - SECTION 9 - IDENTIFICATION PARADE - SECTION 27 - CONFESSION - SECTION 114 ILLUSTRATION (A) - THEFT AND RECEIVING STOLEN PROPERTY - SECTION 392, 395, 411, 412, 428 OF IPC - IPC - IDENTIFICATION PARADE - IDENTIFICATION IN COURT - SUBSTANTIVE EVIDENCE - IDENTIFICATION OF ACCUSED - RECOVERY OF STOLEN PROPERTY - CONVICTION - SENTENCE - MODIFICATION.
Fact of the Case:
Dacoity was committed in the house of the complainant on 9-2-1997 at 1.15 hours. The appellants were identified as the culprits during the trial. Some of the stolen ornaments were recovered from the houses of the appellants pursuant to their statements under Section 27 of the Evidence Act. The appellants were convicted under Sections 395/412 of IPC and were sentenced to 8 years rigorous imprisonment and a fine of Rs. 2,000/- each.
Finding of the Court:
The identification of the appellants during the trial was sufficient to prove their involvement in the crime. The statements made by the appellants under Section 27 of the Evidence Act were admissible as evidence. The recovery of the stolen property from the houses of the appellants further corroborated their involvement in the crime. The appellants could not be convicted under both Sections 395 and 412 of IPC as the act of dishonest removal constitutes dishonest reception.
Issues: 1. Whether the identification of the appellants during the trial was sufficient to prove their involvement in the crime? 2. Whether the statements made by the appellants under Section 27 of the Evidence Act were admissible as evidence? 3. Whether the recovery of the stolen property from the houses of the appellants further corroborated their involvement in the crime? 4. Whether the appellants could be convicted under both Sections 395 and 412 of IPC?
Ratio Decidendi: 1. The identification of the appellants during the trial was sufficient to prove their involvement in the crime as it was corroborated by the recovery of the stolen property from their houses. 2. The statements made by the appellants under Section 27 of the Evidence Act were admissible as evidence as they were made voluntarily and were not extracted under duress. 3. The recovery of the stolen property from the houses of the appellants further corroborated their involvement in the crime. 4. The appellants could not be convicted under both Sections 395 and 412 of IPC as the act of dishonest removal constitutes dishonest reception.
Final Decision: The conviction of the appellants under Section 395/412 of IPC was set aside. The conviction of the appellants under Section 392 of IPC was altered from one under Section 395 of IPC. The sentences of the appellants were reduced from 8 years rigorous imprisonment and a fine of Rs. 2,000/- each to 5 years rigorous imprisonment and a fine of Rs. 2,000/- each.
KISHORE KUMAR PRASAD, J. :- This appeal is directed against the judgment and order of conviction dated 13-12-2005 and order of sentence dated 14-12-2005 passed by the learned Additional Sessions Judge, 3rd Court, Suri, Birbhum in connection with Sessions Trial No. 2 of April, 2004 arising out of Sessions Case No. 2 of 1999 by which they were convicted under Section 395 of IPC and were sentenced to suffer eight years rigorous imprisonment and also to pay fine of Rs. 2,000/- each in default of payment of fine to suffer further rigorous imprisonment for two months and were further convicted under Section 412 of IPC and were sentenced to suffer eight years rigorous imprisonment and also to pay fine of Rs. 2,000/- each in default of payment of fine to suffer further rigorous imprisonment for two months.
2. The sentences awarded to them were ordered to run concurrently.
3. The narration of the prosecution case is given in details in the judgment of the learned trial Court and it is not necessary to repeat the same in details here.
4. The case arose out of a dacoity said to have been committed in the house of the complainant Swapan Kr. Mitra (P.W. 1) on the night of 9-2-1997 at about 1.15 hours in village Sukhbazar within the limits of Illambazar P.S. District Birbhum. According to prosecution some unknown dacoits entered the house, threatened P.W. 1 and his wife (P.W. 2) with dire consequence, struck knife blow on the abdomen of P.W. 1 when he tried to flee away and looted away several valuable golden and silver ornaments weighing 22 Bharis and cash of Rs. 57,000/-from the bedroom and the shop room of P.W. 1. After committing the looting, the dacoits left the place.
5. On the same date, the informant Swapan Kr. Mitra went to Illambazar P.S. and lodged a written complaint (Exhibit 1) disclosing the details of the operation of the dacoity. Eventually, Illambazar P.S. Case No. 7/1997 dated 9-2-1997 under Section 392 of IPC was registered on the basis of this written complaint. The police authority took up investigation. In course of investigation, some of the stolen ornaments including cash of Rs. 2,000/- looted away by the dacoits were recovered from the house of the appellants Md. Salim and Rafiqul Alam pursuant to their statements and also from the house of appellant Sk. Sujit alias Nafijul and the same were seized under three seizure lists by the officer-in-charge, Illambazar P.S. the investigating officer (P.W. 11). After completion of investigation, P.W. 11 submitted charge-sheet against the appellants under Sections 392/395/397/412 of IPC on 31-5-1997 showing the appellant Sk. Murshid alias Morai as absconder. The case was committed to the Sessions Court. The trial Court framed charges under Sections 395/412 of the IPC. The appellants denied the charges and claimed trial.
6. Prosecution in order to establish the case against the appellants examined as many as 11 witnesses including the informant as well as his wife (P.W. 2) and the son, P.W. 3, of the informant.
7. Prosecution, during trial, also produced written complaint, seizure lists regarding recovery of some money and some incriminating ornaments, injury report of the informant, formal FIR and statements made by the appellants Rafiqul Alam and Md. Salim during investigation under Section 27 of the Indian Evidence Act leading to discovery, weighment chart of the recovered ornaments and some of the recovered ornaments including money which were marked as exhibits 1 to 9 and Mat. exhibit 1 to exhibit III (collectively).
8. The appellants did not adduce any evidence. The defence of the appellants was that they were falsely implicated.
9. The learned trial Judge, after considering the oral and documentary evidence as well as the submissions made on behalf of the parties, found the appellants guilty under Sections 395/412 of IPC and thereafter convicted the appellants and sentenced them as indicated above.
10. Being aggrieved by, as dissatisfied with the said order of conviction
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