- (1.) THE challenge in this appeal is to the order dated 28.01.2008, 29.01.2008 and 31.01.2008 passed by the learned Additional District and Sessions Judge, F. T. Court No. 7 at Alipore, 24 -Parganas (South) in Sessions Trial No. 4(5) 2006 arising out of Sessions Case No. 25(3) 2005 thereby convicting the appellant, Md. Sahid @ Katta Sahid for committing offence under Sections 392 and 397 of the Indian Penal Code and sentencing him to suffer four years rigorous imprisonment with fine for the offence under Section 392 Indian Penal Code and seven years rigorous imprisonment for the offence punishable under Section 397 of Indian Penal Code which would run concurrently subject to deduction of remission under Section 428 of Criminal Procedure Code.
(2.) CONSTRUCTION of a building was going on at 39A, Broad Street, Kolkata ­ 700 019. On 28.10.2004, at about 4.00 p.m., four boys including the appellant entered inside the construction site and on the point of fire arms demanded Rs.1,00,000/ - from Tarun Singh, site -in -charge. That much money was not available with Tarun Singh. His brother, Barun Singh who was an employee of that construction firm, was sent to the Head office at 21/2, Ballygunge Place, Kolkata ­ 700 19 to bring the money so demanded. The miscreants waited there till Barun Singh came back with money. They, however, did not allow any one to go out of the construction site. Barun Singh returned after one hour with Rs. 70,000/ -. The miscreants took that money and left the place. Before leaving the place, they also took away gold chain and wrist watch of Tarun Singh. Tarun Singh lodged one F.I.R. on 28.10.2004 at 22.30 hours with Kareya Police Station which was registered as Kareya Police Station Case No. 329 dated 28.10.2004. It was against four unknown boys aged between 25 to 30 years. The case was investigated into and the investigating officer could apprehend the appellant and another one. They were taken into police custody twice. While they were in Jail custody, they were placed in T. I. Parade. The appellant was identified by the witnesses as one of the miscreants who at the point of gun demanded Rs.1,00,000/ - and took away golden chain and wrist watch. On the basis of the statement leading to discovery, the golden chain and one locket were recovered from one Md. Azad (P.W. - 8). The person arrested with this appellant in connection with this case absconded after he was granted bail. The trial proceeded against the appellant only after filing of charge -sheet against him. Learned Court framed charge against the appellant under Sections 395 and 397 of the Indian Penal Code. The appellant pleaded not guilty to the charge and accordingly, the trial commenced. The Trial Court recorded evidence of ten witnesses on behalf of the prosecution and admitted some documents, such as, F.I.R., seizure list, report of T. I. Parade, rough sketch map of the place of occurrence etc. and admitted some materials into evidence which were marked material exhibits on behalf of the prosecution. No evidence was adduced on behalf of the appellant as his defence in any form. The learned Court found that the prosecution brought home the charges under Sections 392 and 397 of Indian Penal Code against the appellant and accordingly, recorded his conviction and sentence which is impugned in this appeal.
(3.) MR . Kabir, learned Counsel appearing on behalf of the appellant contended that even if it is accepted that the prosecution witnesses made consistent and uncorroborated testimony in respect of the incident alleged, the offence alleged cannot be said to be an offence punishable under Sections 392 and 395 of Indian Penal Code. He contended that it is a case squarely comes under Sections 385/387 of the Indian Penal Code. He contended further that the appellant was arrested prior to 30.11.2004 and the Judgment impugned was passed on 31.01.2008. He is all along in custody since his arrest and thereby has spent four years and ten months behind the bars. Therefore, he be directed to be set at liberty even if charges under Sections 385/395 of Indian Penal Code is found established against him.;