P L D 1965 Dacca 204 (PLP)

SIKANDAR ALI, J.‑Appellants (1) Nur Muhammad alias Nur Ahmad, (2) Motleb Khan, (3) Abdur Rouf alias Rob, (4) Khabir Mridha, (5) Serajul Huq, and (6) Amina Khatun are six out of the twelve accused who were placed on trial before Mr. S. J. H. Sikandar, Sessions Judge, Khulna and variously charged under sections 395, 412 and 414 of the Pakistan Penal Code. Ultimately, the learned Judge on a consideration of the evidence on record together with the opinions of the three Assessors who aided him at the trial, convicted appellants Nos. 1 to 3 under section 395 of the Penal Code and the rest together with appellant No. 3 under section 412 of the Penal Code. On such convictions he sentenced the appellants Nos. 1 to. 3 under section 395 of the Penal Code to rigorous imprisonment for six years each and appellants Nos. 4 and 5 under section 412 of the Penal Code to rigorous imprisonment for eighteen months each. Appellant No. 6 was sentenced under section 412 to rigorous imprisonment for one year. No separate sentence was awarded to appellant No. 3 under section 412 of the Penal Code. Two others also were convicted and sentenced by the learned trial Judge but they have preferred no appeal. The learned Judge also directed return of different amounts and the gun seized from some of the accused to the agent of the Ralli Brothers Limited, Daulatpur and forfeiture of a sum of Rs. 15 (Exh. L) to the State. As to the rest of the cash seized by the police and exhibited in the case that was directed to be returned to the persons from whose possession the same was seized. The accused persons were prosecuted for having committed dacoity on the public highway when some employees of the Ralli Brothers Limited, Daulatpur, were on their way to the Local Post Office with a sum of Rs. one lac in cash at about 6‑20 p.m. on 6‑12‑

60. The said employees are P. W. 2 Sudhir Chandra Singha, P. W. 3 Manir Ahmad Chowdhury and one Mokbul Ahmad Darwan. It is said that the above‑mentioned amount of rupees one lac was being carried in two packets kept inside a trunk and Mokbul Ahmed Darwan was taking the same on a Rikshaw followed by Sudhir Chandra Singha and Munir Ahmed Chowdhury was armed with a gun belonging to the said firm. Each of the aforesaid packets inside the trunk contained Rs. 50,000 in separate bundles of hundred rupee, ten‑rupee and five‑rupee G. C. Notes. One was meant for despatch by Postal Insurance to the company's out‑station at Sonatala and the other meant for similar despatch to another out‑station, namely, Mohimganj. The packet for Mohimganj consisted of 300 pieces of hundred rupee notes amounting to Rs. 30,000 bearing Nos. AS679001 to AS679300 and also 1.500 nieces of ten‑rupee notes amounting to Rs. 15,000 and one thousand pieces of five‑rupee notes amounting to Rs. 5,000 as shown in the finance letter vide office copy Exh. 2, and that for Sonatala similarly contained 200 pieces of hundred‑rupee notes amounting to Rs. 20,000 bearing Nos. AS679301 to AS679500 and also 2,500 pieces of ten‑rupee notes amounting to Rs. 25,000 and 1,000 pieces of five‑rupee notes amounting to Rs. 5,

000. This was also noted in the finance letter vide office copy Exh.

3. It further appears that on each of the labels of hundred‑rupee notes meant for Sonatala and Mohimganj, P. W. 2 Sudhir noted ` Sonatala ' and ` Mohimganj ' respectively to keep the two packets distinct from each other. Then when the escort party thus reached the level crossing of the Railway line nearby a band of dacoits numbering seven or eight attacked the party and having subjected them to various assaults appeared to have decamped with the trunk containing the entire amount of rupees one lac as well as the gun. Information of this incident appears to have reached the company immediately whereon its agent P. W. 1 A. P. Pieris communicated the same to the Superintendent of Police as well as the Officer‑in‑charge of the Thana. The police thereon rushed to the spot and made a number of seizures at the place of occurrence. In the course of the investigation following thereafter the Investigating Officer also recovered the above‑mentioned gun as well as some portion of the stolen cash from the possession of different culprits including some of the present appellants. Some of the accused were said to have also made confessions which were judicially recorded by a Magistrate. Ultimately, the Investigating Officer submitted charge‑sheet against twelve accused persons who were in due course committed to the Court of Sessions where they were tried with the result already mentioned above. All the accused including the present appellants appear to have pleaded not guilty to the charges against them and claimed to be tried. The defence taken on their behalf appears to be that they were falsely implicated in the case. It was further contended that Mokbul Ahmed, the Darwan of the Ralli Brothers, who was escorting the amount to the Post Office decamped with the same. He thereafter supplied a portion of the said amount to the police to entangle the accused persons by showing certain amounts as recovered from some of the accused though actually there was no such recovery. It may be mentioned here that all the six appellants originally preferred a joint appeal from the Jail. Subsequently, however, one of them, namely, Nur Muhammad, filed a regular appeal through an Advocate and be has accordingly been represented at the hearing by Mr. Mirza. The other appellants are undefended and the learned Deputy Legal Remembrancer appearing for the State has placed their cases also with the fairness expected of him. Mr. Mirza appearing on behalf of the appellant Nur Muhammad has not challenged the factum of the occurrence namely, the dacoity. That appears to us to have also been established conclusively by overwhelming evidence of a most convincing nature. Such evidence has been furnished by Sudhir and Monir (P. Ws. 2 and 3). They have deposed to the details of the prosecution story as stated above. It transpires from their testimony that when they were going on a Rickshaw along with Darwan Mokbul Ahmed who was taking the amount with him in a trunk on a separate Rickshaw and reached the Railway level crossing, a band of dacoits numbering seven or eight fell upon them and assaulted them. As a result of such assault they sustained injuries and 2 of them i.e., P. Ws. Sudhir and Mokbul fell unconscious. Their testimony further is that having subjected them to such assualt the hooligans decamped with the entire cash and the gun. Their evidence receives support from the Railway Gate Keeper of the said level crossing, P. W. 4 Daliluddin, who appears to have rushed to the place of occurrence just when the raiders were retreating. The Investigating Officer also appeared there soon after and seized a number of Alamats including an iron rod in presence of P. W. 4 Daiiluddin Howladar. In course of the investigation subsequently the Investigating Officer also recovered the above‑mentioned gun belonging to the firm in question and some portion of the stolen money from the possession of different culprits. Having regard to the materials thus brought on record we have not the least hesitation in holding that there was in fact a dacoity near the level crossing as alleged by the prosecution and that in course of that dacoity hooligans robbed the employees concerned of the amount entrusted to them, namely, a sum of rupees one lac to be despatched by postal insurance through the local Post Office. We may now turn to the more intricate question relating to the complicity of the appellants in the said dacoity. That, so far as appellant Nur Muhammad is concerned, appears to rest on the evidence of P. W. 5 Eskandar Mia, P. W. 7 Jahura Khatun, P. W. 14 Md. Ali Asghar and P. W. 18 Mr. M. A. Hossain, Magistrate who recorded the confessions of two of the accused, namely, Nur Jahan and Khokan alias Jalil Exhs. 20 and 18 respectively. Out of these the learned trial Judge has discarded the testimony of two, namely, P. W. 5 Eskandar Mia and P. W. 7 Jahura Khatun. In doing so he has assigned cogent reasons. In addition to the reasons thus given by the learned Sessions Judge we may only add that so far as P. W. 5 is concerned he does not appear to dave named appellant Nur Muhammad as having been one of the companions of appellant Motleb Khan at the time of purchase of the rod Exh. 7 either in his statement under section 161 of the Code of Criminal Procedure or in his evidence before the committing Court, while the testimony of P. W. 7 who is a beggar by profession has on the face of it a clear ring of improbability rendering her evidence highly doubtful. Thus on a careful consideration of all the relevant facts and circum stances disclosed, we are of the opinion that the learned Judge was perfectly justified in discarding their evidence as he did. Coming next to the evidence of P. W. 14 Md. Ali Asghar, Sub‑Inspector of Police who has testified to the seizure of the label Exh. 6 on which P. W. 2 Sudhir, as already mentioned above, noted the destination of the packet concerned; suffice it to point out that none of the three witnesses who are purported to have witnessed the search resulting in the said seizure has been produced or examined in the case and that necessarily makes the evidence of P. W. 14 Md. Ali Asghar as to the said search and seizure considerably shaky. The evidence on record in this behalf is that the above‑mentioned label was found inside the pillow of Nur Muhammad regarding which it may be mentioned in addition to what has been already pointed out above that there appears to be nothing whatsoever on record to connect the pillow in question with the said appellant. In view of the circumstances thus disclosed the evidence of P. W. 14 also cannot be credited with much importance or weight. The only other piece of evidence remaining in connection with this appellant is that furnished by Exhs. 18 and 20 said to be the confessions of Khokon alias Jalil and Nur Jahan but these, in our view, can, by no stretch of imagination, be regarded as confessions. In the first place these are self -exculpatory in that the deponents clearly stated that they had committed no offence. Secondly, they do not in fact appear to have had any connection with the occurrence or offences involved except that Nur Jahan, according to her was given a sum of Rs. 500 out of the booty by the dacoits who admitted that they had got the said booty by the commission of a dacoity but warned not to speak about it to any one else. This however strikes us as a cock and bull story and appears to have been invented as a clever device to make the statement available against the co‑accused concerned as a confession. It is preposterous to think that dacoits would allow a stranger like Nur Jahan to witness the division of their booty or make an admission like 'that referred to above before such a stranger Exhs. 18 and 20 must therefore be rejected as absolutely worthless and clearly inadmissible. The conviction of Nur Muhammad, therefore, has no foundation to stand upon. Having regard to the difficulties pointed out above, the learned Deputy Legal Remembrancer also found it difficult to support the conviction of this appellant. We now come to appellant Motleb Khan who has been convicted under section 395 of the Penal Code and sentenced to suffer rigorous imprisonment for six years. P. W. 5 Eskandar Mia has deposed that this appellant purchased from him on the date of this occurrence the rod Exh. VII and this rod, it is important to bear in mind, was recovered by the Investigating Officer (P. W. 19) from the place of occurrence almost immediately after the retreat of the dacoits in presence of the above mentioned railway level crossing gate‑keeper P. W. 4 Daliluddin Howladar. It has already been mentioned above that P. Ws. 2 and 3 both were assaulted and sustained some injuries in course of the dacoity in question. The doctor who examined P. W. 3 Monir Ahmed found on his person some injuries, which according to him, might be caused by some hard substance such as an iron rod. In addition to the above, there is also the evidence of P. W. 20 Ali Ahmed Khan, the Circle Inspector of Police, who appears to have confronted this appellant within the premises of People's Jute Mills where he works and recovered from his possession a sum of Rs. 300 in presence of P. W. 8 Faridul Had who is a Labour Officer of the said Mill. It appears from the testimony of the two witnesses mentioned above that the Circle Inspector confronted the appellant by questioning as to where he had kept the dacoity money; whereon the latter after some hesitation took his shirt which was lying on the floor and brought out of its pocket two bundles of ten rupee‑notes (Exhs. X and XI) amounting to Rs.

300. The Inspector seized the same on preparation of the seizure list Exh. 1, attested by P. W. 8 Faridul Haq. Moreover, this accused has been implicated by appellant Khabir Mirdha in his confessional statement Exh. 2 (1). Thus the materials on record appear to be conclusive to bring the charge under section 395 of the Penal Code against this appellant home to him and he has in our opinion been rightly convicted thereunder. The next appellant, whose case we propose to consider now, is Abdur Rouf alias Rob who has been convicted under sections 395 and 412 of the Penal Code for having participated in the dacoity in question and also for dishonest possession of stolen property transferred by the commission of that dacoity. It may be pointed out straightway at the very outset that the said convictions of this appellant both under sections 395 and 412 of the Penal Code, cannot, in any view of the matter, be supported as legally sound. As a matter of fact it is difficult to support the same under either. The evidence adduced as against this appellant appears to be two‑fold. In the first place it .was sought to be made out through the testimony of P. W. 5 Eskandar Mia that he was one of those who accompanied Motleb Khan when the latter purchased the rod Exh. VII from him, that is P. W. 5 Eskandar Mia, on the date of the occurrence P. W. 7 Jahura Khatun deposed to the effect that this accused and some others on their return with the booty to the house, where they were putting up, distributed the same in her presence and gave her as well a sum of Rs. 20, asking her not to speak about it to any one else. The learned Sessions Judge has discarded the evidence of both of these witnesses as undependable. For the reasons already made clear earlier we find ourselves in complete agreement with him in this behalf and endorse the view taken by him that these two witnesses are not such as may inspire confidence. Nevertheless, the learned trial Judge appears to have relied upon the factum of recovery of a sum of Rs. 35,000 from the possession of his mother in his house at Feni by P. W. 13 Assistant Sub‑Inspector Probhat Chandra Roy in presence of P. W. 20 Ali Ahmad Khan, Circle Inspector under the seizure list Exh. 16 and appears to have based the conviction of this appellant mainly upon that piece of evidence. So far as this fact of recovery in relation to the mother of this appellant is concerned, we shall come to it at a later stage but for the present we need only observe that on the evidence on record we fail to find anything on the basis of which Abdur Rauf may be connected with the same. The mere fact that the person from whose possession the recovery was made happened to be his mother or that the house concerned belong B to him is not sufficient to warrant a conclusion that Abdu Rauf must have kept the said amount there or may be regarded as having been in possession of the same. It should be borne in mind that Abdur Rauf was residing in Khulna and it is, his mother who was then living in the said Feni house. It is thus clear that there is really no evidence on record to connect this appellant either with the alleged dacoity or with the retention or possession of the above‑mentioned amount recovered from the possession of his mother, namely, appellant Amena Khatun. His convictions, cannot, therefore, be upheld. We may pass on to appellant Khabir Mirdha. It is in the evidence of P. W. 15 Sayemuddin Molla, Sub‑Inspector of Police that he searched the house of this appellant, namely, Khabir and recovered therefrom a sum of Rs. 1,550 including one hundred‑rupee note which tallies with the number borne by one of the notes stolen by the dacoits in the course of the dacoity in question. In this behalf he has been supported by P. W. 9 Ahmad Ali Molla, a neighbour of Khabir in whose presence the recovery was made. P. W. 9 Ahmad Ali Molla has fully supported the factum of recovery. It is further supported by the seizure list Exh. 12 prepared by P. W. 15 Sayemuddin and attested by P. W. 9 Ahmed Ali. As has already been mentioned above, the amount recovered included a hundred‑rupee note which is one of the notes belonging to the Rally Brothers and looted away by the dacoits together with the other notes as already mentioned above. Thus in the facts and circumstances of the case, there can be no manner of doubt that Khabir dishonestly retained this amount having the requisite guilty knowledge o belief that this was stolen property of which the possession had been transferred by the commission of dacoity. Khokan alias Abdul Jalil has also implicated this appellant in his judicial confession recorded by P. W. 18 Mr. M. A. Hossain, Magistrate. On the materials on record, therefore, this appellant too appears to have been rightly convicted and sentenced under section 412 of the Penal Code. We now come to appellant Serajul Huq from whose possession the stolen gun of the Rally Brothers Exh. IXL has been recovered. This recovery was made by P. W. 2 Sudhir in presence of P: W. 11 Abul Hasnat. It transpires from their evidence that Serajul Huq on being confronted by the Inspector led them to a ditch near his house and brought out therefrom the said gun. Having regard to the facts and circumstances disclosed, we find no reason at all to entertain even the slightest doubt regarding the truth of the evidence given by these two witnesses bearing on the circumstances of the said recovery. We are also fully satisfied that Serajul Huq dishonestly retained the said gun knowing it fully well or having reason to believe that it was a stolen property of which the possession must have been transferred by the commission of the dacoity. We accordingly find no ground for interference with his conviction under section 412 of the Penal Code as well. Lastly, we come to appellant No. 6 Amena Khatun, mother of appellant Abdur Rauf. As has already been made clear above, a sum of Rs. 3 5,000 was recovered from her possession. This recovery was made by P. W. 20 Ali Ahmed Khan, Circle Inspector in presence of P. W. 13 Assistant Sub- Inspector Probhat Chandra Roy. It appears from the testimony of these two witnesses that on their appearance they found appellant Amena Khatun lying on the floor of her but and on being asked was found reluctant to move therefrom. Ultimately, she was prevailed upon to move and it was found that the spot whereon she was lying was newly plastered with mud. This naturally aroused the suspicion of these two witnesses and on digging the place found the said amount which included three hundred‑rupee notes out of the above‑mentioned amount despatched by the Ralli Brothers for their out stations and looted away by the dacoits on the way. The evidence of P. W. 13 Probhat Chandra Roy and P. W. 20 Ali Ahmed appears to receive support also from the seizure list Exh. 16 prepared by P. W. 20 on the spot. There can be no manner of doubt in the facts and circumstances of the case together with the conduct of Amena Khatun mentioned above that she retained the said sum dishonestly, i.e., that she must have had knowledge or at any rate belief that the amount was a stolen property whereof the possession must have been transferred by the commission of dacoity. Thus the charge under section 412 of the Penal Code appears to us to have been brought home to Amena Khatun in a most convincing manner and no interference is called for in respect of her conviction thereunder. In the result, we allow the appeal of Nur Muhammad alias Nur Ahmad and Abdur Rouf alias Rob and set aside their conviction and sentences and acquit them of the charges levelled against them. They are directed to be set at liberty forthwith if not wanted in any other connection. We, however, dismiss the appeal in respect of the remaining appellants and maintain their convictions together with the sentences imposed upon them. We also maintain the direction as to return and forfeiture of the amounts and gun seized by the Police and exhibited in the case. A. SUBHAN CHOUDHURI, J.‑I agree. K. B. A. Appeal partly accepted.