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High Court Of Calcutta
NURE ALAM CHOWDHURY,Jyotesh BANERJEE
SHEW KR.RAI - Appellant
Versus
STATE OF WEST BENGAL - Respondent
CRIMINAL APPEAL 226 Of 1999
Decided On : 09/13/2002
IPC - Conviction under Section 396 and 120-B - Summary of the acts and sections referenced and discussed by the court: The court considered the evidence presented by 20 witnesses, including the informant, eye-witnesses, doctors, and police officers. The judgment discussed the elements of the offence under Section 396 and the requirement of five or more persons for the offence of decoity under Section 391. The court found that the evidence did not establish the presence of five or more persons, leading to the conclusion that the accused could not be convicted under Section 396, IPC. The court also analyzed the evidence related to the alleged robbery and the identification of the accused, ultimately finding that the prosecution failed to establish the guilt of the accused. The court further examined the seizure of stolen articles from the accused and found the evidence insufficient to connect the accused with the offence. Consequently, the court allowed all the appeals, acquitted the accused, and disposed of the death reference.
Fact of the Case:
The case involved the conviction of 10 accused under Section 396 and 120-B of IPC, along with additional convictions under other sections. The prosecution presented evidence from 20 witnesses, including the informant, eye-witnesses, doctors, and police officers. The sole point for consideration was whether the trial court was justified in convicting the accused under the mentioned provisions of the Indian Penal Code and in recording the sentence. The main evidence revolved around the incident of a murder and robbery, with the prosecution's case relying heavily on the testimony of a sole eye-witness.
Finding of the Court:
The court found that the evidence presented by the prosecution failed to establish the guilt of the accused. It was noted that the evidence did not prove the presence of five or more persons, as required for the offence of decoity under Section 391, IPC. The court also found discrepancies in the identification of the accused and the seizure of stolen articles, leading to the conclusion that the prosecution had not successfully proven the charges against the accused. As a result, the court allowed all the appeals, acquitted the accused, and disposed of the death reference.
Issues: The main issue revolved around the sufficiency and reliability of the evidence presented by the prosecution to establish the guilt of the accused. The court specifically examined the elements of the offence under Section 396, the requirement of five or more persons for the offence of decoity under Section 391, and the identification of the accused, ultimately finding that the prosecution had failed to prove the charges beyond a reasonable doubt.
Ratio Decidendi: The court's decision was based on the analysis of the evidence presented, including the testimony of the sole eye-witness, the identification of the accused, and the seizure of stolen articles. The court found that the prosecution's evidence did not meet the required standard to establish the guilt of the accused, leading to the decision to allow all the appeals, acquit the accused, and dispose of the death reference.
Final Decision: The court allowed all the appeals, acquitted the accused, and disposed of the death reference. The accused persons were found not guilty of the charges and were ordered to be released from jail custody. Additionally, the articles seized were to be returned to the transport company, if not already returned.
( 1 ) THESE eleven appeals has been directed against the judgment and order of conviction dated 22-7-99 passed by Additional Sessions Judge, 3rd Court, Nadia at Krishnagore by which the learned Judge convicted all the 10 accused/appellants under Section 396 and 120-B of IPC. In addition to that accused/appellants Shew Kumar Rai, Debasis Khan, Khokan Kunar were also convicted Under Sec. 326, IPC and accused/appellants Tarun Bhattacharjee, Probir Samanta, Debnath Das and Prosanta Dey were convicted Under Sec. 412, IPC. On their conviction, accused/appellants Shew Kumar Rai, Khokan Konar and Debasis Khan were sentenced to death. Apart from the death sentence, the aforesaid accused/appellants were also sentenced to a fine of Rs. 75,000/- each. Subject to confirmation by this Court under S. 366 (1) of the Cr. P. C. other accused/appellants who were convicted as aforesaid were sentenced to imprisonment for life with a fine of Rs. 50,000/- each in default to suffer R. I. for another five years. Being aggrieved by the order and sentence passed by the learned Additional Sessions Judge, the accused/appellants filed in all eleven appeals. Amongst the accused/appellant Khokan Konar filed two appeals, namely, Crl. Appeal No. 227/99, 267/99 and accused/appellant Debasis Khan also filed two appeals, namely, Crl. Appeal Nos. 228/99, 258/99. These appeals, which have arisen from the common order and judgment of conviction along with death Reference No. 2/99 in connection with the death sentence of the aforesaid three accused/appellants have been heard together and the death reference and the appeals will be disposed of by the present judgment.
( 2 ) P. W. 1 Anwar Mallick lodged the FIR on 4-5-98 in the morning, alleging that on that day at about 9. 30 a. m. when he was proceeding towards Naki Gram along the National Highway (N. H. 34) he found a dead body of an unknown person with injuries lying by the side of the highway in between village Singhati and Naki. Subsequently, he also came to know that another person with injuries on throat had been admitted at Saktinagar Hospital with serious condition. On the basis of such FIR police started the case under Section 302, IPC and on completion of the investigation submitted C. S. against all the accused/appellants under Section 396/412/120-B, IPC. Subsequently, the learned Additional Sessions Judge raised charge under Section 120-B/396. 326 and 412, IPC against all the ten accused/appellants. Thereafter, on the basis of the evidence on record, the learned Judge convicted the accused/appellants and sentenced them as aforesaid.
( 3 ) THE only point for our consideration in the present appeal is whether the learned trial Court is justified in convicting the accused/appellants under the aforesaid provisions of Indian Penal Code and also in recording the sentence as seen above?
( 4 ) IN order to bring home the charge, the prosecution here has examined in all 20 (twenty) witnesses, P. W. 1. Anowar Mallik is the informant who lodged such information after discovering a dead body of an unknown person at about 6. 30 or 7 a. m. on a day in the first week of May, 1998. P. W. 2, Salim Mallick is a resident of village Singhati near about which village, the dead body was discovered. According to this witness he had been to the spot seeing a crowd there and found the dead body lying and at the request of the police affixed his signature on the inquest report. P. W. 3 Samser Ali Mallik has claimed in his evidence that he affixed his signature on the inquest report in the similar way while passing through the spot. P. W. 4, Md. Juhi was the Assistant to the lorry driver bearing No. W. B. 03/8087. he is an eye-witness and we propose to discuss his evidence at the time of consideration of the total evidence adduced from the side of the prosecution to bring home the charge. P. W. 5, Samar Barman, P. W. 6 Samir Biswas, P. W. 7 Shyam Poddar, P. W. 8 Tapas Ghosh and P. W. 9 Susanta Santra are the
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