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2022 Supreme(Cal) 940
IN THE HIGH COURT OF CALCUTTA
Joymalya Bagchi, Bivas Pattanayak, JJ.
Joydeep Roy @ Raju And Others - Appellant
Versus
State Of West Bengal - Respondent
C.R.A. 266 of 2012 with CRAN 6 of 2018 (Old CRAN 486 of 2018) With CRA 177 of 2012 In CRAN 4 of 2021 With CRA 181 of 2012 With CRA 637 of 2012 With CRA 758 of 2012
Decided On : 14-03-2022
Mr. P. P. Das, Advocate. Mr. Sourav Chatterjee, Advocate Ms. Subhasree Patel, Advocate, Mr. Soham Banerjee, Advocate, Ms. Saini Das, Advocate. Mr. Kalyan Kr. Mukherjee, Advocate. Mr. Navanil De, Advocate, for the Appellant; Mr. Neguive Ahmed, ld. A.P.P, Ms. Zareen N. Khan,Advocate, Ms. Trina Mitra, Advocate, Ms. Amita Gaur, Advocate, Mr. Ashok Das, Advocate, for the Respondent
The main legal point established in the judgment is the reliance on witness credibility and the proof of specific criminal offences, leading to the alteration of convictions and sentences for the appellants.
Headnote:
Dacoity - Indian Penal Code - Section 396, 302, 34 - Summary of the prosecution evidence: - Whether P.Ws. 1, 2 and 4 are reliable? - Credibility of P.Ws. 5 and 6: - Whether the offence of dacoity is proved? - Whether the offence under section 302 read with section 34 of the I.P.C. is proved?
Fact of the Case:
The prosecution case involved a robbery and murder on a train, where the appellants were convicted for dacoity and murder. The witnesses provided detailed accounts of the incident, including the robbery and the murder of a 12-year-old boy. The appellants challenged the reliability of the witnesses and the proof of dacoity and murder.
Finding of the Court:
The court found the witnesses P.Ws. 1, 2, and 4 to be reliable, as their accounts were consistent and detailed. However, the court expressed skepticism about the credibility of P.Ws. 5 and 6, as their accounts were inconsistent and lacked corroboration. The court concluded that the offence of dacoity was not proved, but the offence under section 302 read with section 34 of the I.P.C. was proved against some of the appellants.
Issues: The issues revolved around the reliability of the witnesses, the proof of dacoity, and the establishment of the offence under section 302 read with section 34 of the I.P.C.
Ratio Decidendi: The court found the witnesses P.Ws. 1, 2, and 4 to be reliable, but expressed skepticism about the credibility of P.Ws. 5 and 6. The court concluded that the offence of dacoity was not proved, but the offence under section 302 read with section 34 of the I.P.C. was proved against some of the appellants.
Final Decision: The court altered the convictions and sentences of the appellants based on the findings, setting aside the conviction and sentence of one appellant, altering the convictions and sentences of two appellants, and confirming the convictions and sentences of the remaining appellants.
JUDGMENT
Joymalya Bagchi, J. - Appellants have challenged the judgment and order dated 06.02.2012 and 07.02.2012 passed by learned Additional Sessions Judge, Diamond Harbour, South 24-Paraganas, in Sessions Trial No. 11(08)2006 arising out of Sessions Case No. 14(07)2006 convicting them and one Sunil Mondal @ Chittu for commission of offence under Section 396 of the Indian Penal Code and one Momrej Ali Khan @ Bhikari under Section 395 of the Indian Penal Code and sentencing the appellants Azim Mistry, Bidhan Ghorui, Joydeep Roy @ Raju and Ranjit Mondal @ Rana to suffer imprisonment for life and to pay a fine of Rs. 2,000/- each in default to suffer simple imprisonment for six months each and the appellant Sk. Motleb and Sunil Mondal @ Chittu to suffer rigorous imprisonment for ten years and to pay a fine of Rs.2,000/- each in default to suffer simple imprisonment for six months each for the selfsame offence. Appellant Azim Mistry was also convicted under section 25 (1-B) (a) of the Arms Act and sentenced to suffer rigorous imprisonment for three years and pay a fine of Rs. 1000/-, in default, to suffer simple imprisonment for three months more.
2. Prosecution case, as alleged against the appellants and one Sunil Mondal @ Chittu and Momrej Ali Khan @ Bhikari is to the effect that on 24.03.2006 one Asraf Gazi, P.W. 1 had boarded a train commonly known as 'cash train' from Magrahat Station around 2:30 p.m. P.W. 1 was carrying a sum of Rs. 96,900/- on behalf of his employer Golam Md. Gazi who ran a meat shop for purchasing buffaloes for his business. He had kept the money concealed in an underwear pocket which was covered with chocolate wrapper and kept in a red and white coloured bag. When the train reached Hotor Railway Station, two boys boarded the train and sat opposite to P.W. 1. Thereafter the train reached Durgapur station and proceeded towards Kalyanpur. At that juncture, one of the boys placed a pistol on the head of P.W. 1 while the other placed a pistol on his stomach. The person who placed up a pistol on his stomach hit him on the hand with the butt of the firearm. The other miscreant who had placed pistol on his head snatched away the red and white coloured bag containing money. He cried out 'dakaat dakaat'. The boys fled towards the door of the compartment. When P.W. 1 proceeded towards to door, he found two more persons standing with pistols in their hands. One of them shouted 'Awaj Kara'. Thereupon, the other fired from his pistol. A boy sitting in the compartment was hit with a bullet and fell down on the seat. His clothes were drenched in blood. As the train slowed down at Kalyanpur station, the dacoits got down from the train and fled away. He also got down at the station and informed his employer who asked him to go to Baruipur GRPS. Son of his employer came to Baruipur GRPS. He narrated the incident to him and the latter scribed the written complaint which was lodged at the police station.
3. P.W. 2, Officer-in-charge of Diamond Harbour GRPS, received written complaint from Asraf Gazi, P.W. 1 and commenced investigation. He went to the place of occurrence and thereafter to Baruipur Hospital where he saw the dead body of the victim boy viz., Somnath Majumdar.
4. He examined witnesses and arrested Bidhan Ghorui, Joydeeb Roy and Ranjit Mondal. Inquest was held over the dead body of Somnath. He collected post mortem report. From the statements of the arrested accuseds, he came to know the involvement of Azim Mistry. CID took over investigation in the instant case on 12.04.2006 and the investigation was entrusted to P.W. 21 S.I. Shyamal Kr. Mukherjee who was posted at Bhabani Bhawan, CID at the relevant time. P.W. 21 received information that one driver Momrej Ali @ Bhikari had gone to Kalyanpur Station with Tata Sumo vehicle bearing No. WB 02M 9455. He arrested Momrej and on his interrogation came to know the names of 4/5 miscreants. He also sent requisition to S.I., S. N. Chakraborty to arrest Sk. Motaleb. On the sho
