Joymalya Bagchi, J. - (1.) The Appeal is directed against judgment and order dated 20.12.2012 and 21.12.2012 passed by learned Additional Sessions Judge, Fast Track 1st Court, Suri, Birbhum in Sessions Case No. 177 of 2011 corresponding to Sessions Trial No. 08/DECEMBER/12 convicting the appellants for commission of offences punishable under Sections 395/397 of the Indian Penal Code and directing them to suffer rigorous imprisonment for nine years each and to pay a fine of Rs.6,000/- each, in default, to suffer further rigorous imprisonment for six months for the offence punishable under Section 395 of the Indian Penal Code and to suffer rigorous imprisonment for eight years each and to pay a fine of Rs.6,000/- each, in default, to suffer rigorous imprisonment for six months for the offence under Section 397 of the Indian Penal Code. Both the sentences are to run concurrently.
(2.) The prosecution case, as alleged against the appellant, is to the effect that on 26.07.2011 at about 11.25 p.m. one Rajendranath Chandra (P.W. 1) along with five others were returning from Bolpur to Ahamedpur in a Tata Sumo bearing registration no. RH-30A/7776. When the vehicle reached near old culvert at Seur more about eight armed miscreants stopped their vehicle and assaulted them and snatched gold chain, finger ring, wrist watch, mobile phones and Rs.90,000/- from them. The miscreants were aged about 20-30 years and they also looted other vehicles going towards Bolpur. They also snatched three mobile phones and Rs.6,050/- from a Tata Sumo vehicle of Manthon Broad Band Service. On the written complaint of Rajendranath Chandra (P.W. 1) Sainthia P.S. Case No. 88/11 dated 27.07.11 under Sections 395/397 of the Indian Penal Code was registered. In the course of investigation police arrested the appellants and on the leading statement of appellants stolen articles were allegedly recovered. Section 412 of the Indian Penal Code was added to the first information report. In the course of test identification parade the appellants were identified by various witnesses. In conclusion of investigation charge sheet was filed under Section 395/397/412 of the Indian Penal Code against the appellants and one Dilip Mundari. The case was committed to the Court of Sessions and transferred to the Court of Additional Sessions Judge, Fast Track, 1st Court, Birbhum at Suri for trial and disposal. Charges were framed under Section 395/397/412 of the Indian Penal Code. The appellants pleaded not guilty and claimed to be tried. In conclusion of trial, the trial Judge by a judgment and orders dated 20.12.2012 and 21.12.2012 convicted and sentenced the appellants, as aforesaid. By the self-same judgment and order, Dilip Mundari was acquitted of all charges and the appellants were acquitted of the charge under section 412 of the Indian Penal Code. At the time of the admission of the appeal, a rule for enhancement of sentence was issued. Hence, the present appeal and the rule for enhancement of sentence are taken up for hearing analogously.
(3.) Mr. Mukherjee, learned Advocate for the appellants submitted that identification of the appellants by the witnesses is not without doubt. The witnesses could not identify most of the appellants in the course of the first test identification parade and their identification in Court also suffers from various infirmities. Source of light at the place of occurrence is doubtful. Furthermore, the seized articles were not identified as stolen properties and even the trial Judge refused to rely on the evidence of recovery of stolen articles from the appellants and acquitted them of the charge under Section 412 of the Indian Penal Code. Accordingly, he prayed for acquittal of the appellants.;