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2011 Supreme(Cal) 220
High Court of Judicature at Calcutta
ASHIM KUMAR BANERJEE
Mursalim Shaikh @ Bahadur Shaikh & Others
Versus
The State of West Bengal
C.R.A. No.179 of 2008
Decided On : 17-02-2011
For the Appellants:Jayanta Narayan Chatterjee, Sufi Kamal, Prithviraj Sinha Roy, Advocates.
For the Respondent:Swapan Kumar Mallick, Advocate.
Conviction under Section 412 for possession of stolen property is maintainable even if the dacoity is not proved.
Headnote:
CRIMINAL APPEAL - Section 395, Section 412, Section 25 of the Arms Act - Charge of dacoity not proved - Conviction under Section 412 for possession of stolen property - Conviction under Section 25 of the Arms Act for illegal possession of arms - Legality.
Fact of the Case:
The complainant was robbed of his suitcase containing valuables by four armed miscreants while returning from Kolkata. The police arrested the accused and recovered the stolen articles and arms from their possession. The trial court acquitted the accused of dacoity and criminal conspiracy but convicted them under Section 412 for possession of stolen property and Morsalim under Section 25 of the Arms Act for illegal possession of arms.
Finding of the Court:
The High Court held that the conviction under Section 412 was maintainable even though the dacoity was not proved as the stolen articles were recovered from the possession of the accused. The court also upheld the conviction of Morsalim under Section 25 of the Arms Act as he could not offer any plausible explanation for the possession of the illegal arms.
Issues: 1. Whether the conviction under Section 412 was maintainable even though the dacoity was not proved? 2. Whether the conviction of Morsalim under Section 25 of the Arms Act was legal.
Ratio Decidendi: 1. The court held that the conviction under Section 412 was maintainable as the stolen articles were recovered from the possession of the accused, and the fact that the dacoity was not proved was immaterial. 2. The court held that the conviction of Morsalim under Section 25 of the Arms Act was legal as he could not offer any plausible explanation for the possession of the illegal arms.
Final Decision: The appeal was dismissed, and the conviction and sentence of the accused were upheld.
ASHIM KUMAR BANERJEE.J
1. BACK DROP
On or about September 6, 2004 the Principal of Ludhar Institution in the district of Mursidabad made a complaint to the Officer in-charge, Samserganj Police Station to the effect that he had come back from Kolkata on the said day via Janasatabdi Express after his medical treatment being accompanied by Abul Hossain. While he was proceeding towards his house from the station through a rickshaw some armed miscreants stopped his rickshaw in front of the go down of the station road. They brandished a dagger and a chisel and demanded all valuables. The miscreants held a dagger at his neck as well as at the neck of Abdul. One of them held a pistol on their chest and ultimately snatched away the VIP suitcase and fled away towards the railway track on the right side. There was load shedding at that time. He however, could see four miscreants. He was not sure about any other miscreant being present. He gave a list of the articles which he lost due to snatching of his suitcase.
The Police acted on the said complaint and made a search. PW-14 was entrusted with the investigation. He consulted the available police records to find out who were involved in the like incident in the recent past. He also interrogated the complainant as well as his companion Abul. He also examined other witnesses under Section 161 of the Criminal Procedure Code and then conducted raid to apprehend the suspects. The names of the suspects came out during investigation. On September 7, 2004, PW-14 conducted a raid at the house of the suspects and other probable hide out and ultimately arrested Mosalim Sk., Tarikul Sk., Samaul Ali and Ansar Ali. He interrogated the accused and recorded their statements under Section 161.
Taking a cue from their interrogation he recovered stolen articles as well as arms from the respective houses of the accused. The prosecution charge-sheeted all the four accused who pleaded not guilty and faced trial.
2. EVIDENCE
PW-1 (Mojammel Hq.)
The complainant himself corroborated what he had stated in his complaint.
He gave detailed narration of the incident including the utterance of the accused. He could not be shaken during cross-examination. He also identified the five hundred rupee note which he used to keep in his purse for emergency. Needless to mention, the said note was also a part of the robbed articles and recovered from the custody of the accused.
PW-2 (Azim Sk.)
The witness was a seizure witness. He identified his signature appearing on the seizure list. He was declared hostile as he failed to identify the seized articles. In cross-examination, he however admitted that he was present during preparation of five seizure lists and admitted to have put his left thumb impression “on some papers”.
PW-3 (Munna Sk.)
The witness was also declared hostile as he could not recollect about the incident. He however identified the three accused whom he knew.
PW-4 (Saiful Sk.)
The witness was at the Tea Stall at the station. He heard about the snatching.
The Officer-in-charge enquired from them about who could be involved in the crime. Dilip Saha, in his presence, had informed the Police that he had seen Tarikul, Bahadur and Samaul going by a rickshaw van. On 8th day of the month at night Police could find Bahadur, Tarikul and Samaul at their home and arrested them. On the next day i.e. on 10th the Police took them on remand. He however could not see the articles seized by the Police. He could identify the Chopper (Hasua) having Tarikul’s name engraved on its handle.
In cross-examination, he deposed that a pistol, Bhojali and Hasua were recovered from the backside of the house. He was a seizure witness. He deposed that being a member of the Surakkha Bahani he put his signature.
The witness was given a chance to clarify his statement. He clarified that the pistol, Hasua and Bhojali were recovered from the house of Samaul, Tarikul and Bahadur.
PW-5, PW-6 & PW-7 (Madhusudan Saha, Ataur Rahaman &
