- (1.) Appeals are directed against the judgement and order dated 16.02.2010 passed by the learned Additional District and Sessions Judge, Sealdah, South 24 Parganas, in Sessions Trial No. 3(5) of 2009 convicting the appellants in both the appeals for commission of offence punishable under Section 392 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for seven years and to pay fine of Rs.10,000/ - only, in default to suffer simple imprisonment for one year more for the offence punishable under Section 392 of the Indian Penal Code and convicting appellant no. 2 (Kachi Pandit) in CRA 287 of 2010 for commission of offence punishable under Section 397 of the Indian Penal Code and under Section 25(1B)(a) of the Arms Act and sentencing him to suffer rigorous imprisonment for seven years for the offence under Section 397 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for one year and to pay a fine of Rs.2,000/ - in default to suffer further simple imprisonment for three months more for the offence under Section 25(1B)(a) of the Arms Act, all the sentences to run concurrently.
(2.) Prosecution case, as alleged, against the appellants as follows : On 31.03.2009 at about 03.15 hours Smt. Minati Datta (PW 4) noticed that four persons, one armed with bhojali surreptitiously entered her room. As she tried to raise alarm one of the miscreants threatened her with bhojali and another snatched away gold chain, ear ring, churi, nose pin, mobile phone etc. from her person. They ransacked the suitcase, showcase and took away three nose pins. Thereafter one of them stood in front of her with a bhojali. Other three miscreants went to the adjoining room. There were two steel almirahs in the adjoining room. One person came back and demanded the keys of the almirah. Minati (P.W. 4) told him that key was not with her, he went away and after a while defacto complainant heard the sound of opening the almirahs from the adjoining room. In the mean time, hearing the hue and cry, elder sister of the defacto complaint viz. Suniti Pain (PW 5) came downstairs and saw the miscreants. She started shouting 'chor, chor' and thereafter the accused persons fled away through the grill gate one by one. Suniti Pine found that the almirahs were open, the articles have been ransacked and on inspection she found that the bundle containing ornaments like gold chain, ear ring, six pieces of churi and gold ring were missing. Minati (PW 4) noticed that the padlock of the grill gate was lying broken. Police attached to the Manicktala Police Station were contacted over phone and P.W. 4 lodged written complaint with the police when them came to the P.O. which was treated as first information report being Manicktala Case No. 121 dated 31.03.2009 under Sections 392/397 of the Indian Penal Code. In the course of investigation, the appellants were arrested and stolen articles were recovered from their possession. In test identification parade they were identified by P.W.s 4 and 5. In conclusion of investigation, charge - sheet was filed against the appellants under Section 392/397 of the Indian Penal Code and under Section 25(1B)(a) of the Arms Act against the appellant no. 2, Kachi Pandit. After obtaining the opinion of the arms expert a supplementary report was filed. The case, being a sessions triable one, was committed to the Court of Sessions, Alipore, South 24 Parganas and transferred to the Court of Additional Sessions Judge, Sealdah, South 24 -Parganas for trial and disposal. Charges were framed under Section 392/397 of the Indian Penal Code against the appellants and under Section 25(1B)(a) of the Arms Act against the appellant no. 2, in CRA 287 of 2010, namely Kachi Pandit. The appellants pleaded not guilty and claimed to be tried. In the course of trial prosecution examined as many as twelve witnesses and exhibited a number of documents. Defence of the accused persons was one of innocence and false implication. In conclusion of trial, the learned Trial Judge by judgement and order dated 16.02.2010 convicted the appellants for commission of offences punishable under Section 392 of the Indian Penal Code and sentenced them for rigorous imprisonment for seven years and to pay fine of Rs.10,000/ - only, in default to suffer simple imprisonment for one year more for committing offence punishable under Section 392 of the Indian Penal Code and further convicted appellant no. 2 (Kachi Pandit) in CRA 287 of 2010 for commission of offence punishable under Section 397 of the Indian Penal Code and under Section 25(1B)(a) of the Arms Act sentenced him to suffer rigorous imprisonment for seven years for commission of offence punishable under Section 397 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs.2,000/ - in default to suffer further simple imprisonment for three months more for the offence punishable under Section 25(1B)(a) of the Arms Act, all the sentences to run concurrently.
(3.) Mr . Gupta, learned Counsel appearing for the appellant in CRA 446 of 2010 and as amicus curiae in CRA 287 of 2010 submits that there are patent absurdities and/or inconsistencies in the prosecution case. It is not clear as to whether there was a grill gate in the veranda of the first floor of the house of P.W. 4. P.W. 1, plan maker, did not notice such a grill gate in the verandah. He submits that conduct of P.W. 4 to sleep with the lights burning in her room is highly artificial and cannot be believed. He further submits that there was nothing to show as to how the miscreants gained access to the verandah on the first floor as the locks on the ground floor and the mezanine floor had not been broken. He submits that F.I.R. had been altered to include description of the appellants. He criticizes the test identification parade on the premise that there was inordinate delay in holding the test identification parade and the fact that the appellants had complained to the learned Magistrate (P.W. 12) after holding of test identification parade and they had been shown to the witnesses while in police custody. He submits that seizure of the stolen articles and the bhojali was doubtful as the independent witnesses were not local persons. All the seized articles had not been identified and nothing had been placed on record to establish the ownership of P.Ws 4 and 5 qua the seized articles. He accordingly prays for acquittal of the appellants. Mr. Banerjee, learned Additional Public Prosecutor, submits that P.Ws, 4 and 5 identified the appellants in course of test identification parade and in Court. The appellants were at the place of occurrence for about 40 to 45 minutes and their identification was, therefore, most probable. The plea of showing the appellants to the witnesses in police custody was an afterthought and therefore did not vitiate the identification. Seizure of the stolen articles as well as bhojali had been proved beyond reasonable doubt. Part of the seized articles were identified as stolen property. Opinion of the arms expert had not been doubted in this case. He prays for dismissal of the appeal. P.W. 1, A.S.I., Partha Ray, is the plan maker who prepared the plan of the place of occurrence. In cross -examination, he stated that he had not seen any grill gate in the verandah. P.W. 2, Purnendu Ray, is the photographer who took photographs on the place of occurrence. Material exhibit 1 is the photograph showing the grill gate in the verandah. P.W. 3, S.P. Dikpati, is the arms expert who gave the report that the seized bhojali came under the purview of the Arms Act. In cross -examination, he stated that such bhojali is available in the market. P.W. 4, Minati Dutta, is the most vital witness of the instant case. She stated that she alongwith her mother resided in the first and second floor of P44 C.I.T. Scheme No. VII, Kankurgachi for 17 to 18 years. The said building is a three storied building. She resided in the first floor while her mother used to reside in the second floor. She stated that there are two rooms in the first floor. There is a verandah in front of the room which is covered by a grill having an opening which remains under lock and key. She stated that she used to sleep with the lights burning in her room. She deposed that on 31.03.2009 she went off to sleep at mid -night. The incident occurred around 03.15 hours at the night. At the time of the incident, she was awaken by some sound and found four persons inside the room. One of the persons threatened her with a bhojali. Thereafter they ransacked the showcase and one almirah in her room. They also ransacked the almirahs situated in other room. They snatched away gold ornaments like churi, gold sonabadha, gold har, gold nakchabi and also took away gold ornaments from the almirah, mobile phone from the bed and cash from her bag.;