- (1.) The Judgment of the Court was delivered by This appeal is directed against the judgment and order passed in Sessions Trial No. 220 of 2007 by learned Additional District and Sessions Judge, Fast Track 3rd Court, Howrah thereby convicting the appellant under sections 399/402 of Indian Penal Code and sentencing him to undergo R.I. for five years and to pay a fine of Rs.2,000/-, in default to suffer S.I. for one month for an offence punishable under section 399 of IPC and further sentenced him to suffer R.I. for five years and to pay a fine of Rs. 2,000/-, in default to suffer S.I. for one month more for the offence punishable under section 402 of IPC. THEre is an order to the effect that both the punishment shall run concurrently.
(2.) Factual background in a nutshell is that Sub-inspector, Subhas Jana, Officer-in-Charge of Shalimar Police Station received a source information to the effect that 7/8 dacoits have assembled at Santragachi railway station to commit dacoity in Up-Puri Passenger train on 19-8-2005. That information was recorded in the G.D. book vide Entry No. 1037 dated 19-8-2008. He left the police station with constable Nagendranath Roy, Swapan Mazhi, Debasish Mondal and Biswanath Maity and proceeded towards Santragachi railway station by police vehicle No. WB-347-8210. He informed Officer-in-charge, R.P.F. general over phone. Around 23.25 hours they reached Santragachi railway station where RPF force and public witnesses, namely, Bisu Das and Haradhan Ghosh joined. They arrived at platform No. 2 and 3 of Santragachi railway station and divided themselves into two parts to apprehend the assembled persons. Realising the arrival of the police personnel the assembled persons tried to flee away from the spot but three of them were apprehended after a short chase while 4/5 persons managed to escape. The apprehended persons were searched by police and from the possession of Gautam Adhikary, Somnath Bhattachariya (appellant) and from another accused person one pipe gun loaded with 303 ammunition, one knife, one razor and mobile phone respectively were recovered. Those articles were seized by preparing a seizure list in presence of witnesses. Signature of the accused persons were taken on the seizure list. Labels were pasted on the seized articles and the signature of the witnesses and the accused persons were taken on those levels. Thereafter accused persons were brought to the police station along with the seized articles. The de facto complainant lodged a complaint at the police station and the Shalimar G.R.P.S. Case No. 19 of 2005 dated 20.8.2005 under sections 399/402 of IPC read with 25&27 Arms Act was started. The matter was investigated into and charge sheet was submitted. The case was committed to the learned Court of Sessions Judge by learned Chief Judicial Magistrate, Howrah and the learned Sessions Judge, Howrah transferred the case to the Court of Additional District and Sessions Judge, Fast Track 3rd Court, Howrah for disposal. Charge under sections 399/402 of IPC was framed" against the appellant Somenath Bhattacharjee. The trial of the matter was taken up. In course of trial twelve witnesses were examined. Beside oral evidence the seized article was exhibited as Mat. Ext. The accused/ appellant was examined under section 313 of Cr PC and on conclusion of the trial the appellant was convicted and sentence was passed against him, so this appeal. Mr. Debajyoti Deb, learned advocate appearing for the appellant has placed the judgment passed by the learned Additional District and Sessions Judge, Fast Track 3rd Court, Howrah. Beside it the evidence of prosecution witnesses were placed. It has been contended by Mr. Deb that section 391 of Indian Penal Code demands the presence of five or more persons in case of committing a dacoity and in the instant case only three persons have been charged with the offence punishable under sections 399/402 of IPC i.e. for committing dacoity and as such it is hit in the eye of law. It is not maintainable.
(3.) He has further contended that there is anomaly regarding the place of seizure and the seizure itself. The general diary which is claimed to have been recorded by the complainant at the time of departure from the Shalimar police station has not been produced before the learned Court below. The label of Mat. exhibits reflected different G.D. number. The seizure is suspicious and not believable. HE has also contended that evidence of the prosecution witnesses disclosed that some passenger were there at the platform even then they were not called for to witness the seizure. R.P.F. personnel who were alleged to have been there and accompanied the de facto complainant have not signed the seizure list and there is no explanation to that effect as to why they did not put their signature on the seizure list even their pressure at the spot was claimed by the prosecution. Independent witness Haradhan Ghosh/P.W.2 has failed to identify the appellant. The evidence on record is conflicting as to where the seizure was made. Some say that it was on the platform and some says it was at Santragachi office. The evidence on record further gives contradictory thing regarding the duration of seizure. Some says 15/20 minutes some says 40/45 minutes and so on. The judgment and order of conviction and sentence may be set aside. Mr. Deb has cited the decisions in (Chaturi Yadav and others v. State of Bihar, 1979 AIR(SC) 1412), (Ram Lakhan v. State of U.P, 1983 AIR(SC) 352), (Sk. Rezaul @ Dalai Rezaul v. State of West Bengali, 2008 1 CalCriLR 142 and [Shew Kumar Rai and Ors. v. State of West Bengal, 2002 CalCriLR 986] to substantiate his contention. Mr. Swapan Kumar Mallick, learned advocate appearing for the State has contended that there were in all 7/8 persons at the Santragachi railway stationand the intention of those persons was to commit dacoity in Up-Puri Passenger train. Police personnel tried to apprehend all those persons but have succeeded in apprehending three persons and the rest managed to escape. Therefore, the ingredient of section 391 of IPC is well established and that is why the appellant was tried, convicted and sentenced for the offence punishable under sections 399/402 of IPC. Mr. Mallick has invited the attention of the Court to the evidence of prosecution witnesses regarding the number of persons who assembled at the spot to commit dacoity. He has also contended that the appellant was examined under section 313 of Cr PC by the learned Court below. He gave stereo type answer to all questions and even did not give any explanations about the seizure of knife from his possession. There was no suggestion even from the defence during cross-examination of prosecution witnesses that no knife was seized from the possession of the appellant and the appellant and others were assembled at Santragachi railway station for any other purpose. The citation placed by Mr. Deb have no application in this matter. The order of conviction and sentence passed by the learned Court below may be affirmed.;