KANCHAN CHAKRABORTY,J. - (1.) THE Appeal, being C.R.A. 292 of 2010, has been preferred by Md. Raju and the Appeal, being C.R.A. 490 of 2010, has been preferred by Md. Salim alias Israil. Both of them together with others were found guilty of the offences under Sections 398 and 324/34 of the Indian Penal Code in Sessions Trial No. C/424/2005. By the judgment dated 28.04.2012, the learned Additional Sessions Judge, Fast Track Court No. 1, Howrah, recorded their conviction and sentence. Md. Raju was sentenced to suffer Rigorous Imprisonment for seven years and to pay fine of Rs.2,000/- for the offence punishable under Section 398 of the Indian Penal Code and further sentence to suffer Rigorous Imprisonment for three years and to pay fine of Rs.1,000/- for the offences punishable under Sections 324/34 of the Indian Penal Code. The appellant Md. Salim alias Israil was similarly sentenced for the same offences. Since they challenged the same judgment whereby they were convicted, this Court proposes to dispose of both the appeals by this common judgment.
(2.) ON 27.02.2005, at about 2.35 A.M., four miscreants entered into the house of Puranmal Agarwal with arms and ammunitions. They threatened Smt. Gayatri Agarwal, wife of Puranmal Agarwal, who raised hue and cry and Bhagwati Agarwal, brother of Puranmal Agarwal, who came out and saw the miscreants standing in front of the door of his bedroom on the first floor. The miscreants threatened him at the point of firearms and chopper, but Bhagawati jumped on one of them and caught hold of him. Bhagawati was assaulted by the miscreant badly. In the meantime, Puranmal Agarwal and others came out of their rooms but three other miscreants escaped after opening the western door of the ground floor. The miscreant, who was apprehended, had a scuffling with Bhagawati and, as such, both of them fell down from the last stair of the ground floor. The miscreant as well as Bhagawati both received injuries due to such fall. A bomb, which was being carried by the miscreant, exploded at that time. The said miscreant and Bhagawati received injuries due to blasting of bomb. Police was informed and the miscreant, who was apprehended, was handed over to police with firearms and ammunitions. Arrangement for medical treatment was made. The miscreant disclosed his name as Md. Salim alias Israil. He was aged about 20 years while the miscreants who could escape were having average age of 30 years. Puranmal Agarwal lodged one First Information Report with the Howrah Police Station stating the facts above, which was registered as Howrah Police Station Case No. 37 of 2005 dated 27.02.2005 under Sections 398 and 324 of the Indian Penal Code read with Sections 25/27 of the Arms Act. In course of investigation, Test Identification Parade of the miscreants was held. Arms and ammunitions were recovered and examined by expert. The available witnesses were examined by the Investigating Officer of the case. Investigation ended in a charge sheet. The appellants together with five others were arrayed to face charges under Sections 398 and 324/34 of the Indian Penal Code, to which they pleaded not guilty. As a consequence, the trial commenced. As many as eleven witnesses were examined on behalf of the prosecution. F.S.L. Report, Injury Report of Bhagawati, Injury Report of the appellant, Md. Salim, the First Information Report, Test Identification Parade Report, rough sketch map of the place of occurrence, seizure list, etc. were admitted into evidences and marked exhibits 1 to 10 on behalf of the prosecution. That apart, pipegun, cartridges, sealed packet and label thereon, wearing apparels, padlock with chain, etc. were produced in Court, identified by witnesses, admitted into evidence and marked material exhibits on behalf of the prosecution. No witness was examined on behalf of the defence. In course of examination under Section 313 of the Code of Criminal Procedure they simply pleaded their innocence without making out any specific plea or taking any specific alibi. The learned Trial Court upon consideration of the evidence on record, oral and documentary, came to the findings that the prosecution established the case against the appellants beyond all reasonable doubt and, accordingly, recorded order of their conviction and sentence, which has been impugned in these two appeals, mainly, on the following grounds: (i) that the learned Trial Court was oblivious of the fact that the main ingredient of the offence under Section 398 of the Indian Penal Code, i.e., intention to commit dacoity was completely absent in the prosecution case; it was no where stated that the miscreants entered into the house of Puranmal Agarwal with an intention to commit dacoity; therefore, the learned Trial Court ought to have acquitted the appellants from the charge under Section 398 of the Indian Penal Code; (ii) that the learned Trial Court failed to take note of the fact that the Test Identification Parade of the suspects were not done in accordance with the procedure laid down by the Code; the learned Court failed to take note of the fact that the Investigating Officer of the case had taken part in the Test Identification Parade and, as such, the entire process of identification parade lost its legal value; (iii) that the learned Trial Court failed to take note of the contradictions in the oral testimonies of the witnesses regarding manner in which the appellant Md. Salim alias Israil was caught; and (iv) that the judgment being otherwise bad in law, is liable to be set aside. Mr . Suman De, learned counsel appearing on behalf of the appellants contended that in order to convict an accused under Section 398 of the Indian Penal Code, prosecution is saddled with the burden to establish that (i) there was attempt to commit robbery or dacoity and (ii) the offender is armed with deadly weapon. Mr. De contended that the first ingredient, i.e., attempt to commit robbery or dacoity, has not at all been established in the instant case. He had taken this Court to the First Information Report, which was marked Exbt. 3, and contended that there was no whisper that the miscreants entered into the house of Puranmal Agarwal with an intention to commit dacoity or robbery. He had taken this Court to the evidence of the witnesses and contended that there was no whisper as to the intention on the part of the appellants to commit robbery in the house of Puranmal Agarwal. Some stray statements have been made by some of the witnesses, which, according to Mr. De, are not sufficient enough to cover up the lacuna in the prosecution case on this issue.
(3.) MR . Ghose, learned counsel appearing on behalf of the State of West Bengal contended that intention, being a mental state-of-affair, is to be deduced from the fact situation, conduct and other factors. Mr. Ghose contended that from the fact that four persons entered into a house at an odd hour armed with deadly weapons, threatened the inhabitants with dire consequences, one of them was caught and other escaped, in all probabilities, it can well be understood that they entered into the house of Puranmal Agarwal for nothing but committing dacoity or robbery. It is true that the learned Judge did not consider this fact separately but found himself satisfied with the evidences adduced by the prosecution as a whole and came to a findings that the offences under Sections 398 and 324/34 of the Indian Penal Code were well proved. On re-appreciation of the evidences, adduced on behalf of the prosecution, I find that Mr. De, learned advocate for the appellants, made his submission without basing on the evidence recorded by the learned Trial Court. Starting from the evidence of a man outside the house, i.e., P.W. 3, it appears that the story of robbery or attempt to commit robbery very much there from the inception. The P.W. 3 is a medical officer attached to Howrah District Hospital. On 27.02.2005 at about 3.15 hours, he examined Bhagawati Prasad Agarwal. He stated that Bhagawati told him that some robbers entered into the house at night for committing robbery and he apprehended one robber and both of them received bomb injury. This statement of the doctor (P.W. 3) was not challenged by the appellants while they cross-examined him. The P.W. 4, the lodger of the First Information Report, although has not stated anything about the intention of robbery or dacoity of the miscreants who entered into his house but in his cross-examination, he has stated that he did not mention the names of the dacoits in the written complaint excepting the name of Md. Israil. He also stated that he mentioned in the written complaint that he could recognize the other docoits.;