- (1.) The appeal is directed against the judgement and order dated 25/26.02.2010 passed by the learned Additional District and Sessions Judge, Fast Track III, Howrah convicting the appellant and one Md. Samim for commission of offence punishable under section 324/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for three years with a fine of Rs. 10,000/-, in default to suffer simple imprisonment for four months more.
(2.) The prosecution case, as alleged, against the appellant and Md. Samim is as follows :- One Madhu Dasgupta (P.W. 1) lodged a written complaint before O.C., Shalimar Police Station. That on 09.11.2006 he was travelling in the third compartment of MH 140 Midnapur-Howrah local train. He had boarded that train at 10.05 p.m. from Mechada railway station. Another passenger, namely, Nanda Kishor Singh (P.W. 3) had also boarded from Mechada. The train left Santragachi Station at about 11.15/11.20 p.m. Three miscreants came to the compartment before the train reached Ramrajatala. One of the miscreants who was carrying pistol threatened them and another miscreant carrying knife came towards him and assaulted him resulting in injury on his head and left thumb. Rupees 5,000/- and a mobile phone was taken away. Another co-passenger, namely, Pankaj Bhattacharya (P.W. 4) objected to the violent acts of the miscreants to which the miscreants opened fire from the pistol but fortunately the bullet passed through the window of the train and as Pankaj Bhattacharya pushed away the pistol he was also assaulted. The miscreants jumped from the train to escape but the appellant sustained injury on his leg and head and was caught by Pankaj Bhattacharya and others Co-passengers Nanda Kishor Singh, Bishnath Chatterjee and Tarak Chatterjee sustained bleeding injuries on their person. On questioning the appellant admitted that he was accompanined by Md. Samim of Shibpur. On the basis of written complaint Shalimar GRPS Case No. 24/06 dated 10.11.2006 under section 394/307 of the Indian Penal Code with section 25/27 of Arms Act was registered for investigation. In conclusion of investigation charge sheet was filed against the appellant and Md. Samim under section 394/307 of the Indian Penal Code read with section 25/27 Arms Act. The case, being a sessions triable one, was committed to the Court of Sessions, Howrah, and transferred to the Court of the Additional Sessions Judge, Fast Track III, Howrah for trial and disposal.
(3.) Charges were framed in the instant case under section 394/307/34 of the Indian Penal Code. The appellant and co-accused pleaded 'not guilty' and claimed to be trial. In the course of trial, the prosecution examined 13 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. In conclusion of trial, learned Judge by judgement and order dated 25/26.02.2010 convicting the appellant and Md. Samim for commission of offence punishable under section 324/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for three years with a fine of Rs. 10,000/-, in default to suffer simple imprisonment for four months more. Hence, the appeal at the behest of the appellant. Mr. Das, learned counsel appearing for the appellant submitted that the appellant was identified for the first time in Court and there was no test identification parade conducted during investigation. Knife seized in the case cannot be said to be weapon of assailant. It was not identified by the witnesses and there was no labelling of the seized knife at the time of seizure. He further submitted that the evidence of the prosecution witnesses is most artificial and does not inspire evidence. He accordingly prayed for acquittal of the appellant.;