MURSALIM SHAIKH Vs. STATE OF WEST BENGAL

LAWS(CAL)-2011-2-20

HIGH COURT OF CALCUTTA

Decided on February 17,2011

MURSALIM SHAIKH Appellant

VERSUS

STATE OF WEST BENGAL Respondents

JUDGEMENT

- (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 godown 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 Abul. 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 loadshedding 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 Code of Criminal Procedure 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 clue 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 Of-ficer-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 and PW-7 (Madhusudan Saha. Ataur Rahaman and Dokari Ghosh) Madhusudan accompanied by Ataur, went to the room of Jamuna Chowdhury who used to sell country liquor. He witnessed a quarrel between Kazirul and his four companions and gathered that they were involved in a snatching. The dispute arose regarding share of the booty. Four persons were of the view that since Kazirul was not involved in snatching he would not be entitled to any share. He however deposed that the Kazirul and his companions were in inebriated condition. However, he came back without taking any liquor. Ataur supported Madhusudan and deposed that Kazirul threatened his companions that in case he was deprived of his share he would inform the Police about the incident. Dokari (PW-7) was also present at the liquor shop. He corroborated PW-5 and 6. PW-8 (Amal Rajak) The witness was a washer-man by profession. He identified his mark on the wearing apparel seized from the custody of the accused and certified that those wearing apparel belonged to PW-1. PW-9 (Mukul Sk.) The witness was a post occurrence witness. He could not recollect to have signed the seizure list. PW-10 (Nirmal Sarkar) The witness was the Deputy Superintendent of Police. He was an arms expert. He examined the arms and submitted his report. He proved his report that was admitted in evidence. PW-11 (Adam Sk.) The Witness was also a post occurrence witness. He deposed that Dilip had informed him that he had seen three persons going by a van having muddy wearing apparel. Those three persons were Bahadur, Tarikul and Samaul. PW-12 (Safikul Islam) The witness was the rickshaw puller in whose rickshaw PW1 along with his companion Abul was returning from the station when the snactching took place. PW-13(Abul Hossein) Abul corroborated PW-1. PW-14 (Dipak Kumar Das) The witness was the Officer-in-charge at the relevant date. He conducted the investigation. He gave details of the investigation which got corroboration from the other witness. The learned Judge put the incriminating evidence to each of the accused who did not offer any explanation and/or clarification except pleading their innocence.
(3.) Judgment The Additional Session Judge, 2nd Fast Track Court, Jangipur considered the evidence and found all the accused guilty of the offence. The learned Judge however observed that the prosecution failed to satisfy the requirement of Section 395 as there was less than five accused as per the complaint lodged by the complainant. He was also of the opinion that the criminal conspiracy alleged as against the accused for committing dacoity under Section 395 could not be proved in absence of adequate evidence on the role of Kazirul coming out during trial. On the issue of possession of stolen property he found accused Morsalim @ Bahadur. Tarikul, Ansar and Samaul having received the properties stolen in dacoity within their knowledge. Hence, he convicted them under Section 412 of the Indian Penal Code. On the issue of possession of arms since Morsalim could not satisfactorily answer or produce any valid licence for possession of the country made pipe gun and live cartridge recovered from his possession he was held to have contravened the provisions of Section 7 of the Arms and convicted under Section 25 thereof. In short, the learned Judge held that neither the conspiracy nor the dacoity could be proved. Since the stolen properties were recovered from the possession of four accused they were charged under Section 412 whereas for illegal possession of arms Morsalim was convicted under Section 25 of the Arms Act. The learned Judge sentenced Morsalim for rigorous imprisonment for five years along with a fine of rupees five thousand and in default to undergo rigorous imprisonment for one year more under Section 412. He was also convicted for seven years coupled with a fine of rupees ten thousand and in default to undergo rigorous imprisonment for another two years for the offence committed under Arms Act. The other accused were however imposed punishment of five years' rigorous imprisonment coupled with a fine of rupees five thousand and in default further rigorous imprisonment for one year under Section 412. I am told that Tarikul, Ansar and Samaul already served out the sentence and were set at liberty. Morsalim almost served out his period of sentence except the in-default period.;

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