Hon’ble Court in Its Own Motion vs Raju Wilson @ Moni

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Cal) 1216

IN THE HIGH COURT AT CALCUTTA
Debangsu Basak, Md. Shabbar Rashidi, JJ.
The Hon’ble Court in Its Own Motion – Petitioner
Versus
Raju Wilson @ Moni – Respondent
CRR 4064 of 2022, CRA 502 of 2012, CRA 243 of 2012 With CRAN 5 of 2015 (Old No: CRAN 2082 of 2015) With CRAN 8 of 2021
Decided On : 11-01-2023

Advocates:
Advocate Appeared:
For the Appellant : Mr. Habibur Rahman, Adv., Mr. Fazlur Rahaman, Adv., Mr. Md. Babul Hussain, Adv., Ms. Debjani Roy Chowdhury, Adv.
For the Respondent: Mr. Sanjay Banerjee, Adv., Ms. Pushpita Saha, Adv.
For the Amicus Curia : Mr. Arnab Chatterjee, Adv.

Headnote:
Indian Penal Code, 1860 – Section 302, 120B, 396 – Criminal Procedure Code, 1973 – Section 313, – Offence of murder – Criminal Conspiracy – Dacoity with murder – Murder and robbery – Held, It also observed that, although speedy trial was desirable, it cannot be at cost of right of accused to defend oneself properly – In facts of present case, all accused were defended at trial as also during hearing of appeal – Number of witnesses were examined at trial. Cross examination of prosecution witnesses were deferred on prayer made on behalf of the appellants – During hearing of appeals also, appellants were found absent on several dates of hearing – Rule was issued as against the second appellant so as to ensure that appeals were heard in presence of appellants – It was after much ado that, appeals were taken up for hearing – Appellants employed dilatory tactics in delaying disposal of appeals – Ordered Accordingly.

JUDGMENT :

DEBANGSU BASAK, J.

1. Two appeals were heard analogously as they emanated out of the same impugned judgement of conviction and the order of sentence. By the impugned judgement of conviction dated February 29, 2012 and the order of sentence dated March 1, 2012 the appellants were convicted under section 396 of the Indian Penal Code, 1860 and sentenced to life imprisonment.

2. The case of the prosecution was that on June 9, 2005, the duty officer of the jurisdictional police station received a telephonic message from one Deepak Verma who reported that when he visited flat number 18, third-floor, 6, Bishop Lefroy Road, Kolkata, he found the main door of the flat ajar and despite knocking he did not receive any response. The police responded to such telephonic information and reached the place of occurrence. Upon entering the flat through the main door which was open, it was found that the victim was lying on the floor of the dining room with her hands and feet tied with from bedsheets. She was identified. Upon inspection of the flat, the almirahs were found ransacked and various articles like clothes, antique jewellery boxes and bundles of cash were found scattered. A cardboard box with the name of Mr. Sundaram written on it was found.

3. A First Information Report was registered on June 9, 2005 with regard to the incident. On completion of the investigations, the police submitted a charge sheet against the appellants and a juvenile. Charges were framed against the appellants for commission of offences punishable under section 396 read with section 120 B or alternatively section 302 read with section 120 B of the Indian Penal Code, 1860. The appellants pleaded not guilty and claimed to be tried.

4. At the trial, the prosecution examined 31 witnesses. On conclusion of the prosecution evidence, the appellants were examined under section 313 of the Criminal Procedure Code where they pleaded to be innocent.

5. CRA number 243 of 2012 was filed by Sarbar Hossain @ Sheru Ali, Sk. Zahid @ Bapi, and Suresh Nayak. For the sake of convenience, they are referred to as the first set of appellants wherever appropriate. CRA 502 of 2012 was filed by Raju Wilson. For the sake of convenience, he is referred to as the second appellant wherever appropriate.

6. The second appellant was found absent on various dates of hearing of the appeals. Consequently, a Rule was issued against him and amicus curia was appointed. The second appellant responded to the Rule and was represented by his advocate subsequently.

7. The first set of appellants and the second appellant were heard at length. Learned advocates appearing for them advanced elaborate arguments on their behalf. The amicus curia was also heard. They were heard on the alternative charges under Sections 396/120B and 302/120B of the Indian Penal Code, 1806.

8. Learned advocate appearing for the first set of appellants submitted that, section 396 of the Indian Penal Code, 1860 was not attracted in the facts and circumstances of the present case. He submitted that, in order to attract the provisions of section 396 of the Indian Penal Code, 1860, presence of five persons at the time of commission of the offence was required to be established. In the facts of the present case, the prosecution failed to establish presence of five persons at the place of occurrence and at the commission of the offence. The prosecution failed to establish involvement of 5 or more persons in the charges alleged. Therefore, section 396 of the Indian Penal Code 1860 was not attracted.

9. That apart, learned advocate appearing for the first set of appellants contended that, the prosecution failed to establish the charges beyond reasonable doubt. The prosecution witnesses were either interested witnesses or pocket witnesses. No independent witness was examined on behalf of the prosecution. There was no eyewitness to the incident. Prosecution did not produce any witness claiming such witness to be an eyewitness to the incident.