1) Ajoy Kumar Shaw has preferred the appeal no. 224 of 2009 against the judgement and order dated 27.2.2009 passed by the learned Additional District and Sessions Judge, Fast Track Court no. 3, Barasat and Sunil Kumar Das and Gopal Krishna Das have preferred the appeal no. 346 of 2009 challenging the same judgement and order dated 27.2.2009 passed by the learned Additional District & Sessions Judge, Fast Track Court no. 3, Barasat. Since both the appeals are directed against the same judgement and order, they are heard analogously and disposed of by a common judgement below:
2) On 28.2.2005 at about 7.15 hours, Debendra Basak lodged one FIR against some unknown persons in Amdanga Police Station alleging therein that on 28.2.2005 while he along nine(9) other businessmen, after selling handloom sarees in Calcutta, were returning by a 407 covered van bearing no. WB 51 3648 via Barrackpore Kalyani Highway road at about 5.10/5.15 minutes, near the Jute and Tech. Private Limited another 407 light green coloured vehicle obstructed there path. Six numbers of young people aged around 25/30 years, boarded off that vehicle, removed the driver of their van took possession of the vehicle and one of them started driving the vehicle. The other miscreants entered into the van, assaulted the businessmen and forcibly snatched away Rs. 84,000/- cash from their possession. They also took away Mobile sets, golden finger rings, golden chain and other important documents from them at the point of gun. They drove the vehicle through the road leading to Rajberia and stopped the vehicle infront of Moricha Primary School. They boarded off the van after tying up the hands of all the businessmen. One Maroon coloured Maruti car was waiting for them. They boarded on said maruti van and gone towards Naihati.
3) On the basis of said FIR, Amdanga Police Station case no. 18 dated 28.2.2005 under Sections 395/397 IPC with Section 25/27 Arms Act was started. In course of investigation, five(5) miscreants could be arrested. They were placed before Test Identification parade. Some of the theft articles were recovered under seizure lists. On conclusion of investigation, the Investigation Officer filed a charge-sheet against four accused persons namely, Sunil Kumar Das, Gopal Krishna Das, Ashok Karmakar and Ajoy Kumar Shaw for prosecuting them under Sections 395/397 of IPC and 25 and 27 of the Arms Act. The case was committed to the Court of learned Sessions Judge and ultimately transferred to the Court of Additional Sessions Judge Fast Track 3rd Court, Barasat for trial and disposal.
Learned Trial Court framed charge under Sections 395/397 and 412 of IPC against all the four (4) accused persons. Learned Trial Court, after considering the evidence on record, oral and documentary, recorded conviction of all the four accused persons for committing offence under Sections 397/412 of IPC and sentenced them to suffer R.I. for seven (7) years and to pay a fine of Rs. 5000/-, in default, R.I. for six more months and to pay a fine of Rs. 3000/-, in default, R.I for 3 months of the offence under Section 412 of the IPC.
4) Ajoy Kumar Shaw , the one of the convicts has preferred the appeal no. 224 of 2009 while convicts Sunil Das and Gopal Krishna Das preferred the appeal no. 346 of 2009 challenging the judgement whereby the learned Trial Court convicted them and passed the above mentioned sentence. The appeals have preferred on the following grounds :
a) that the learned Trial Court failed to adjudge the prosecution story by applying the test of probability with regard to the commission of alleged offences by the appellants ;
b) that the learned Judge erred in believing the oral testimonies of the witnesses who were sailing on the same boat;
c) that the learned Trial Court failed to appreciate the fact that the Investigation Officer of the case acted illegally by showing the appellants to the witnesses before holding T.I. parade;
d) that the learned Trial Court failed to appreciate that seizure of stolen articles from the possession of the appellant was entirely illegal and section 412 of IPC is not at all attracted;
e) that the learned Trial Court erred in not giving due importance on the specific case of the defense;
f) that the learned Trial Court cited some decisions in support of his view which are not at all applicable to the facts and circumstances of the case; and
g) that the judgement and order impugned being otherwise bad in law, is liable to be set aside;
5) Mr. Bidyut Kumar Roy, learned Counsel appearing for the appellants contended that there are discrepancies in the evidence of the witnesses on material points/issues which were overlooked by the learned Trial Court. According to Mr. Ray, the identification of the appellants in the T.I.P can not be accepted because the appellants were shown to the witnesses by the I.O. prior to holding of the T.I.P. He has contended further that the date of occurrence according to the FIR was 28.2.2005 but at the time of framing of charge, the date have been shown as 23rd day of August. Therefore, gross prejudice was caused to the appellants. He contended, the appellants should have been given benefit of doubt and acquitted. He has taken me to the examination of the appellants under Section 313 of the Cr.P.C. and drawn my attention to the question no. 7 and contended that name of Ajoy Das has been mentioned therein as one of the persons from whom some stolen articles were recovered. No such person Ajoy Das has either been named in the charge-sheet or stated by any of the witnesses in course of trial as a miscreants.
6) Mr. Ganguly, learned Counsel appearing for the opposite party submitted that at the time of framing of charge, the Court made a mistake regarding the date of incident which, however, has neither caused prejudice to the appellants in any manner nor they failed to make their defense properly against charge they faced. It is clear from all other documents as well as evidence on record that the alleged incident had taken place on 28.2.2005. The appellants were examined under Section 313 Cr.P.C. wherein specific questions were put to them regarding the incident dated 28.2.2005. They had given explanation to the questions put to them regarding the incident dated 28.2.2005. The witnesses examined on behalf of the prosecution was not cross-examined by the defense, even inform of suggestion, regarding the date of incident. That being the fact, Mr. Ganguly submitted, that the appellants can not take the plea that they were prejudiced because of mistake taken place while the charge form was typed by the learned Trial Court. 7) Mr. Ganguly also submitted that in a case under Section 395/397 IPC, identification of the dacoits in Court is substantive piece of evidence which Court can rely on besides identification of the dockoits by the witnesses in T.I.P. The identification of the dockoits in T.I.P by the witnesses in supporting evidence which confirms the identification made by the witnesses in course of trial. However, according to Mr. Ganguly the fact that the appellants were shown to the witnesses by the I.O. prior to holding of T.I.P. has not been admitted by any of the witnesses. The suggestions given to the witnesses in course of their cross-examination were denied by the witnesses. Suggestions denied can not be considered as evidence. Therefore, the argument of Mr. Ray is not tenable.
8) So far as the mentioning of the name of Ajoy Das in course of examination of the appellants under Section 313 of the Cr.P.C. is concerned, Mr. Ganguly submitted further that it was a mistake on the part of the Court which has no direct bearing on the merit of the prosecution case. Mentioning of the name of Ajoy Das inadvertently, at the time of examination of the appellants under Section 313 Cr.P.C. does not necessarily demolish the prosecution case against the appellants.
9) I have carefully gone through the judgement passed by the learned Trial Court and the evidence, oral and documentary, adduced and produced by the prosecution in course of trial. In a case under Section 395 and 396, if the culprits are identified and incriminating articles, such as, theft property are recovered from the possession of said identified culprits, court can safely record conviction.
10) In the instant case, all the witnesses have categorically stated that the appellants had taken active part in commission of the dacoity dated 28.22005 while they were returning from Calcutta by a 407 Maruti van after selling handloom sarees. The witnesses have stated categorically that the appellants robbed them at the point of gun and droved the capsized van towards Naihati, abandoned it by the side of road after tying up the hands of the witnesses and left the place by a maroon coloured maruti car. All of them identified the appellants in course of trial as miscreants who took active part in the alleged dacoity. The appellants were not known to the witnesses before the date of incident. There is no case to the effect that the witnesses had any inimical relation with the appellants. There was no reason for the Court to disbelieve their testimonies. The seizure lists as well as the witnesses to the seizure and the evidence of the I.O. altogether indicates that some of the robbed articles were seized from the possession of the appellants. The witnesses stood against the test of cross-examination confidently. They have made consistent statement through out trial and there is no discrepancy in their statements. The learned Court found no reason to discard the oral testimonies of the witnesses and the seizure lists.
11) I have stated earlier that to record conviction in a case of dacoity it is sufficient for the prosecution to establish that identification of the culprits is made by the witnesses and that incriminating articles, such as, looted property are recovered from the culprits. In the instant case, the prosecution has successfully established the identification of the appellants as the miscreants who took active part in the dacoity dated 28.2.2005 at the point of gun. The prosecution has also established that some of the looted articles were recovered from the possession of the appellants. This is a case of highway dacoity. The appellants were not known to the witnesses and witnesses had no reason to implicate the appellants in a Criminal prosecution falsely. The witnesses made consistent and corroborating statement. The recovery has been proved. The identification of the appellants is done properly in Court as well as in T.I.P. There is no reason to disbelieve the prosecution case.
12) I find no merit in the appeal at all. The judgment passed by the learned Trial Court is not required to be interfered with in this appeal.
13) The judgement is affirmed.
14) Mr. Ray, learned Counsel appearing for the appellants submitted that the appellants Sunil and Gopal were in custody in connection with this case for more than 4 years while the appellant Ajoy Shaw is still in custody for last 5 years. Considering the period of detention and the fact that the appellants started living a decent life and there is no adverse report against them since they are released from the custody, the sentence be reduced.
15) Mr. Ganguly appearing for the opposite party submitted that the appellants have already spent a considerable period of time behind the bars. Prayer of Mr. Ray can be considered by the Court with sympathy.
16) Considering the fact that the appellant Sunil and Gopal have already spent more than four years in jail in connection with this case and appellant Ajoy Kumar Shaw is in custody for last 5 years in connection with this case and that there is no adverse report against Sunil and Gopal and it is reported by Mr. Ray that they are working in factories and living a decent life, I take a lenient view in the matter of sentence. In order to meet the ends of justice the order of sentence passed by the learned Trial Court is modified to the extend that the substantive sentence for suffering R.I for 7 years by the appellants is reduced to the period they have already undergone in connection with this case. The appellants are not required to pay any fine in view of the fact that they have already suffered imprisonment for a considerable period of time. The appellants Sunil and Gopal be discharged from their bail bonds. The appellant Ajoy Kumar Shaw be released at once, if not detained in connection with any other case.
17) The appeals, therefore, are disposed of.
18) No order as to costs.