Joymalya Bagchi, J. - (1.) The appeal is directed against the judgment and order dated 8.12.2008 passed by learned Additional Sessions Judge, 6th Fast Track Court, Bichar Bhavan, Calcutta, in Sessions Trial No.4 of February 2007 corresponding to Sessions Case No.120 of 2006 convicting the appellants herein for the commission of offence punishable under section 394 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for seven years and to pay a fine of Rs.2000/- in default to further rigorous imprisonment for six months more.
(2.) Prosecution case, as alleged, against the appellants is to the effect that on 22.8.2006 at about 11.35 p.m. the complainant Samir Saha was waiting for boarding a bus near the crossing of Lenin Sarani and Madan Street and while he was talking on his mobile phone, three unknown persons came in a motorcycle and snatched away the mobile phone from him. The said Nokia mobile phone was of model No.3230 and the sim number was 9836162679. The miscreants had snatched the said mobile phone at gun point and when he resisted, one of them fired at him resulting in gunshot injury on his neck. The complainant was admitted to Medical College and Hospital and upon interrogation by the police he made a statement before them resulting in registration of New Market P.S. Case No.130 dated 23.8.2006 under sections 397/307 of I.P.C. and 25(1B)(a)/27 of the Arms Act. Upon completion of investigation, charge-sheet was filed under sections 394/397/307 of I.P.C. against the accused persons, namely, Noor Hossain @ Rajesh, Sorab Alam @ Room and Md. Ajaharuddin @ Ajhar and thereafter a supplementary charge-sheet was also filed under sections 25(1B)(a)/27 of Arms Act. The case was committed to the Court of Sessions and charges were framed under sections 307/394/397/34 of I.P.C. and also under section 25(1B)(b) of the Arms Act against the aforesaid accused persons. They pleaded not guilty and claimed to be tried. It is pertinent to note that co-accused, Md. Ajaharuddin @ Ajhar died during trial. In the course of trial, prosecution examined twenty-three witnesses. The defence of the appellants was one of innocence and false implication. In conclusion of trial, the learned Sessions Judge by judgment and order dated 8.12.2008 convicted and sentenced the appellants, as aforesaid.
(3.) Ms. Gomes, learned counsel appearing for the appellants submitted that apart from P.W.1, Samir Saha none of the witnesses identified the appellants. Identification of P.W.1 in the course of test identification parade as well as in the Court is not free from doubt. It is submitted that the recovery of the mobile phone on the basis of leading statement of appellant no.1 has not been established beyond reasonable doubt. It is, therefore, submitted that the appellants ought to be acquitted from the instant case.;