- (1.) This appeal is directed against the judgment of conviction and sentence passed by learned Additional Sessions Judge, 1st Court, Howrah in Sessions Trial No. XVIII (January) of 2000 sentencing the appellants to suffer R.I. for life and also to pay a fine of Rs.5,000/- each in default to suffer further R.I. for one year under section 396 IPC. The appellants Jagadish Dewar and Amarjit Upadhyay have been sentenced to suffer R.I. for three months under section 25(1) of the Arms Act. The learned Judge, however, directed that both the sentences will run concurrently.
(2.) The case of the prosecution, in short, is that one Ajay Kumar Chowdhury lodged information alleging that on 17.11.1999 he and his elder brother Klshanlal Chowdhury, younger brother Ganesh Chowdhury were in the grocery shop and doing the business in 'Sree Apartment'. At about 7.25 P.M. when the customers were present in the shop, Dikla, Jagadish, Amarjit, Guddu, Ram Avatar, Ranajit Verma, Omprakash, Chhotu and 5/6 others suddenly entered into their shop being armed with revolvers, bombs and looted all the cash from the shop. It has also been alleged that those miscreants snatched away gold chain from the neck of the younger brother of the informant and some female customers. THE informant and others could not resist them out of fear. After committing robbery the miscreants escaped shooting at random from the firearms and hurling bombs. Kishan Lal Chowdhury, the elder brother of the informant aged about 38 years and an employee of the shop named 'Dadu' suffered severe gunshot injuries and fell down on the ground. Ganesh Chowdhury, the younger brother of the informant also sustained bullet injury in his left hand. THE injured persons were taken to Medicare Nursing Home for treatment. THE doctor declared the elder brother of the informant and the employee 'dadu' alias Tushtudhar Mahanto dead. THE informant also suffered bomb injuries. THE miscreants looted away about eight to ten thousand rupees. THE informant recognized all of them in the electric light of the shop. After receipt of the complaint, the Shibpur P.S. case No. 264 dated 17.11.1999 under section 396 IPC and 25, 27 Arms Act and 9(b) of the Explosives Act was started. After completion of investigation, charge sheet was submitted. Charges were framed under section 396 IPC against all the seven accused persons namely, Dikla alias Surendar Das, Jagadish Dewar, Amarjit Upadhyay, Tifiya alias Haider Ali, Bihari alias Santosh Mahanto, Surya alias Suraj Prosad, Gopia alias S. Goopi; as against Amarjit Upadhyay and Jagadish Dewar under section 25/27 Arms Act and as against Jagadish Dewar under section 412 IPC. The charges were read over and explained to the accused persons who claimed to be tried. The learned Trial Judge while passing the impugned judgment of conviction and sentence held that prosecution has been able to prove beyond shadow of doubt that accused Dikla, Amarjit and Jagadish and some other miscreants being armed with pipe gun entered into the shop of defacto- complainarit under the name and style 'Shyam Vander' and looted away the articles from the shop as well as gold chains from the lady customers and by firing indiscriminately killed two persons. It has been held that the factum of commission of murder by firing has also been proved by examining the doctor (P.W. 12). It has been held that Kishan Lal Dewar, Dadu alias Tushtudhar received gunshot injury. Ultimately, the learned Trial Judge upon consideration of materials on record passed the impugned judgment and conviction of sentence against the appellants. The learned Trial Judge, however, acquitted accused Tifiya alias Hyder Ali, Behari alias Santosh Mahato, Surya alias Suraj Prosad and Gopiya alias S. Gopi as there was no evidence against them.
(3.) Mr. Mukherjee appearing for the appellants submits that despite three persons having been acquitted out of seven, the learned Trial Judge recorded the conviction and sentence under section 396 IPC and under section 25 Arms Act. It is submitted that Jagadish Dewar has been acquitted of charge under section 412 IPC and the learned Trial Judge held that the charge under section 27 Arms Act failed. It is submitted that in the order of sanction issued by the District Magistrate, the date of commission of the offence has not been mentioned; there is also discrepancy in the address of the accused persons between the order of sanction and the seizure list. MR. Mukherjee contends that the FIR is ante-dated. It is submitted that in the relevant column of the formal FIR it has been noted that the information was received on 17.11.1999 at 19.35 hours vide G.D. entry No. 1134. It is submitted that the police officer (P.W.21) received the complaint at the Nursing Home and sent it to the duty officer of the Shibpur P.S. for starting a case which was received at the P.S. at 21.45 hours. MR. Mukherjee contends that the police officer (P.W. 21) stated that he opened the CD. at 19.35 hours, although, evidently the case was registered at 21.45 hours. MR. Mukherjee contends that unless a case is registered at the P.S. and FIR is drawn there is no question of opening the CD. Mr. Mukherjee contends that P.W.6 stated that he did not recognize the miscreants and he told it to the police officer. It is contended that at the time of trial P.W.6 was not asked by the prosecution to identify the accused persons in Court. It is submitted that the P.W.6 is the injured and T.I. Parade was not held at all.;