Back
2014 Supreme(Cal) 821
IN THE HIGH COURT AT CALCUTTA
Joymalya Bagchi, J.
Sushanta Datta and Ors. - Petitioners
Versus
State of West Bengal and Ors. - Respondents
C.R.A. 287 and 446 of 2010 and C.R.R. No. 3415 of 2010
Decided On : 03-11-2014
For the Appellant :Kaushik Gupta and Arijit Bhusan Bagchi, Advocates.
For the Amicus Curiae :Kaushik Gupta, Advocate.
For the State :Subir Banerjee, Advocate.
The identification of the accused in a test identification parade and in Court, the seizure of stolen articles, the proof of ownership of gold ornaments, and the enhancement of sentence in criminal cases.
Headnote:
CRIMINAL APPEAL - Robbery - Identification of Accused - Test Identification Parade - Delay - Showing Accused to Witnesses in Police Custody - Seizure of Stolen Articles - Ownership of Gold Ornaments - Enhancement of Sentence.
Fact of the Case:
Appellants were convicted for committing robbery under Section 392 of the Indian Penal Code. One of the appellants was also convicted for an offence under Section 397 of the Indian Penal Code and Section 25(1B)(a) of the Arms Act.
Finding of the Court:
1. The identification of the appellants by the witnesses in the test identification parade and in Court was reliable, despite the delay in holding the parade and the allegation that the appellants were shown to the witnesses in police custody. 2. The seizure of the stolen articles from the appellants and the bhojali from one of the appellants was proved beyond reasonable doubt. 3. The ownership of the gold ornaments was established by the testimony of the witnesses who identified only the part of the seized ornaments that belonged to them. 4. There were no exceptional circumstances warranting enhancement of the sentence imposed by the trial court.
Issues: 1. Whether the identification of the appellants in the test identification parade and in Court was reliable. 2. Whether the seizure of the stolen articles and the bhojali was proved beyond reasonable doubt. 3. Whether the ownership of the gold ornaments was established. 4. Whether the sentence imposed by the trial court should be enhanced.
Ratio Decidendi: 1. The identification of the appellants was reliable as the witnesses had seen them for a reasonable period of time at the place of occurrence and the light was burning in the room. 2. The seizure was proved by the testimony of the independent witnesses who were present at the place of seizure and the disclosure statements made by the appellants. 3. The ownership of the gold ornaments was established by the testimony of the witnesses who identified only the part of the seized ornaments that belonged to them. 4. There were no exceptional circumstances warranting enhancement of the sentence.
Final Decision: The appeals were dismissed, and the conviction and sentence imposed by the trial court were upheld. The rule of enhancement of sentence was discharged.
Joymalya Bagchi, J.
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 imp
