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1999 DIGILAW 432 (CAL)

Biswanath Roy v. State of West Bengal

1999-08-09

MALAY KUMAR BASU

body1999
JUDGMENT Malay Kumar Basu, J. 1. This Criminal Appeal is directed against the judgment and order dated 19th September, 1984 passed by Shri B.K.Roychowdhury, Judge, 3rd Spl. Court, Calcutta whereunder the appellant No.1 Bishawambhar Rai was convicted being found guilty of an offence under section 411 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year and the appellant No.2 Amarendra Roy was found guilty of offences under sections 409 and 411 Indian Penal Code and convicted and sentenced to suffer rigorous imprisonment for one year and also to pay fine of Rs. 600/-, in default, to suffer further rigorous imprisonment for 3 months. The prosecution case is as follows. 2. On 25th October, 1971 Shri S.N. Sarkar, Sub-Inspector of Police attached to Special Staff, Port Division Calcutta lodged a petition of complaint before the 3rd Additional Special Court, Calcutta against Shri Biswambhar Rai , accused No.1 and Shri Amerendra Roy accused No.2 alleging as hereunder. On 20.4.70 the Calcutta Port Commissioners Watchman No. 109, Ram Ekbal Singh, Watchman No. 205, Narendra Singh, Watchman No. 712, Ramji Singh and Watchman No. 709 Sarif Khan were specially deputed for duty to watch over the Lockfast of 'B' K.G.D. under order of the Chief Security Officer of Calcutta Port Commissioners. They were on duty at different points in and outside the said 'B' K.G.D. Shed from 3 P.M. On the same day, namely, 20.4.1970 at about 4.30 P.M. while they were on duty, the accused No.2 Amarendra Roy a public servant, working as a Lockfast Clerk in 'B' Shed of King George's Dock, Calcutta Port Commissioners (now under suspension), came out of the office of the said Shed and entered into the Lockfast No.1 situated at the ground floor of the Shed and the accused No.1 a Constable No.11065 of Calcutta Police, a public servant formerly attached to King George's' Dock and thereafter attached to Reserve Force (now under suspension), was found standing in plain clothes with a cycle at the 'B' Bay Gate of the Shed. Within few minutes the accused No.2 was found at the Lockfast door and called one Nepali. Within few minutes the accused No.2 was found at the Lockfast door and called one Nepali. Durwan, namely, Krishna Bhadur Pradhan of M/s. Royal Indian Draders, 116, Circular Garden Reach Road, Calcutta-23 who happened to be thereon duty and requested him to ascertain the particulars of the C.P.C.- Watchman Ram Ekbal Singh, referred to above who was on watch duty inside the Shed. The said Watchman disclosed his identity as a Crane Driver of the Calcutta Port Commissioners (known as C.P.C.). Thereafter the said Nepali Durwan went to the accused No.2 and reported to him the identity of the said Watchman accordingly. After knowing this the accused No.2 gave signal by hand to accused No.1 from the door of the Lockfast as stated above. Thereupon accused No.1 hurriedly went inside the Lockfast with the accused No.2 who was standing at the door of the Lockfast C.P.C. Watchman, Ram Ekbal Singh, saw through the iron net of the Lockfast concerned that the accused No.2 drew something from the eastern side and moved towards the western side in the Lockfast and after sometime both the accused persons came up to the Lockfast door when accused No. 2 handed over one handloom cloth bag containing some articles to accused No. 1. Thereafter, the accused No.1 went towards 'B' Bay Gate with the sidebag in his possession while the accused No.2 locked the Lockfast and went towards the Shed Office hurriedly. C.P.C. Watchman, Ram Ekbal Singh immediately followed the accused No. 1 who was found trying to escape by riding the cycle: But, another Watchman, Narendra Singh caught the accused No.1 while he was trying to escape, but as the Watchman Ram Ekbal Singh also arrived at the spot, the accused no.1 was caught and could not escape. The Chief Security Officer of C.P.C. Shri A. Dasgupta who happened to be on duty after having secret information regarding theft etc. of cargo from the 'B' Lockfast also arrived at the spot. He had deputed these Watchmen on that day in the afternoon shift specially to watch over the Lockfast of the Shed referred to above. In course of his watch he noticed a cycle kept on the platform of the western side of the K.G.D. where the accused No.1 was caught. He had deputed these Watchmen on that day in the afternoon shift specially to watch over the Lockfast of the Shed referred to above. In course of his watch he noticed a cycle kept on the platform of the western side of the K.G.D. where the accused No.1 was caught. After his arrival, he directed the two Watchmen, Narendra Singh and Ram Ekbal Singh to take the accused No.1 along with the cloth bag and the cycle to the Shed Office and the whole facts were narrated there. The said Chief Security Officer informed the higher C.P.C. Officer to report the matter to the police. After receiving such information the Police Officers arrived at the Shed Office of 'B' K.G.D. and one letter of complaint from Shri Baidya Nath Ghose, Asstt. Supdt. C.P.C. was received by S.I. A. Paul of Special Staff, Port Division (hereinafter referred to as S.S.P.D) who took cognizence of the matter. The said S.I. Paul took charge of the said handloom cloth bag containing the materials mentioned as follows and also the new Philips cycle No. BR"28487 belonging to the accused" No. 1 in presence of the witnesses and under proper seizure list. The contents of the said cloth bag were found to be : (a) Three sets of piston rings in three paper packets having number 03094-1 (each packet containing 20 rings wrapped up in oil paper) made in U.S.S.R. (b) One paper packet containing 4 piston valves having manufacturing marks and number "C4234" and some Russian marks wrapped up in oil paper. The paper packet contained the following printed and stamped writings (CERESIN) made in U.S.S.R. Part No.04234-Packed 4 Packing date 28.6.68. (c) 7 (seven) paper packets each containing one piston valve. Each packet bears the following printed marks and number : "Genuine GM Parts GE-1 3774052-GIW 296 Valve E.119, Made in U.S.A. (d) One paper packet containing one handle with mfg. No. 5719472. The packet contained the following printed marks and number. "Genuine, GE Parts GE 4408414-GR 10512 E99. Handle, AS, Made in U.S.A." 3. The said letter of complaint was treated as F.I.R. and necessary investigation was started and then the Investigating Officer, S.I. A. Paul, took charge of the Attendance Register of 'B' K.G.D. for the month of April, 1970 produced by Shri Anil Ch. "Genuine, GE Parts GE 4408414-GR 10512 E99. Handle, AS, Made in U.S.A." 3. The said letter of complaint was treated as F.I.R. and necessary investigation was started and then the Investigating Officer, S.I. A. Paul, took charge of the Attendance Register of 'B' K.G.D. for the month of April, 1970 produced by Shri Anil Ch. Ghosh, Tally Supervisor (Operation) (also known as T/S(O) of B' KGD) and he also seized one Thunder Lock Produced by the C.P.C. Watchman Ramji Singh. The said lock was left behind by the accused No.2 instead of locking it in the door or Lockfast No.4 situated at the 1st floor of the Shed. As there was no Lockfast Clerk present at that moment, because the accused No.2 had already fled away, the said I.O. had to seal the Lockfast No.1 and on the following day when the seal was broken and the padlocks were opened in presence of C.P.C. Officers and other Police Officers a search was made with the help of Md. Maniruddin, another Lockfast Clerk of the same Shed and a good number of articles were seized in the Lockfast under Seizure List (vide Exts.). 4. Accused No.2 was found absent from duty on 21.4.70 and 22.4.70 and was absconding. But suddenly he attended his duty on 23.4.70. As the former I.O. S.L Shri Paul was transferred to another unit, the petitioner Sri Sarkar took charge of the case on 9.8.70. On 18.9.70 the petitioner took charge of the case consignment bearing marks "Director, US AID/NEPAL, P.O. 70-B Box of Bozes. HE8308GL-L Case No. 7613" which contained 24 items of auto parts instead of 29 items as per Invoice and Packing List of the Foreign Exporter. Out of 29 items of Auto Parts as stated above, some items were found short in toto and some were found intact, and some of these were either recovered from the possession of accused No. 1 or found concealed in the Lockfast No.1 in trays and or gunny bags etc. Apart from the recovered articles mentioned above two small empty gunny bags and two handloom bags were also seized from the Lockfast and they were probably kept by the accused No.2 for further removal of some articles. Apart from the recovered articles mentioned above two small empty gunny bags and two handloom bags were also seized from the Lockfast and they were probably kept by the accused No.2 for further removal of some articles. The American Consulate, who imported the said case along with 4 other cases (crates) by S/S “Steal Maker”, as mentioned before hand the goods inspected by their representative in the manner stated above and established ownership with due reference to the relevant documents. 5. According to the normal course of business the accused No.2 being a public servant was in possession and was entrusted with the goods (property) in question and had also dominion over the same kept in the Lockfast and committed original breach of trust in respect of property mentioned hereinbefore. The accused No.2 had also entered into a criminal conspiracy with the accused No.1 for committing criminal breach of trust and other offences in connivance with the accused No.1 who had jointly conspired and committed the offence and/or otherwise abetted the commission of the offence by the accused No.2. The accused No. 1 further dishonestly received or otherwise retained the stolen property, as mentioned before, knowing or having reasons to believe the same to be stolen property. 6. The case was put before the learned Chief Presidency Magistrate in normal course, when it was found that the offence was triable by a Special Court and thereafter the Government of West Bengal allotted this case for trial by this 3rd Additional Special Court, Calcutta. The case was, therefore, withdrawn from the ld. C.M.M's file and was filed before the Special Court, Calcutta praying for issue of process against accused No.1 under sections 409, 120B, 109/411 Indian Penal Code and against accused No.2 under sections 409 and 411/120B, Indian Penal Code. 7. Learned Special Judge on a consideration of the materials on record, which consisted of depositions of 32 witnesses examined by the prosecution and the documentary and material exhibits, framed charge against the accused No.2, Biswambhar Rai, under section 411 IPC and against the accused No.2, Amarendra Roy, under sections 409 and 411/109 IPC. Both the accused pleaded not guilty. The P.Ws. were cross-examined after charge by the defence. Both the accused pleaded not guilty. The P.Ws. were cross-examined after charge by the defence. Thereafter, the accused persons were examined under section 313 Cr.P.C. On a discussion of the evidence on record the learned Judge, Special Court has held that the charges against both the accused persons have been established beyond doubt and accordingly he has found them guilty and convicted them and has sentenced the accused No.1, Biswambhar to suffer rigorous imprisonment for one year and the accused No.2 Amarendra, to suffer R.I. for one year and to pay fine of Rs. 600/- l.d. to further R.I. for three months for his committing the offence under section 409 IPC and, further, to suff R.I. for one year for his committing the offence under section 411/109 IPC (both the sentences to run concurrently). 8. Being aggrieved at and dissatisfied with this judgment of the trial court they have preferred the present appeal challenging the findings as illegal, unwarranted, erroneous and perverse. 9. The main point for determination before the trial court was whether the charge under section 411 IPC against the accused, Biswambhar Rai, and the charges under sections 409 and 411/109 IPC against the other accused, Amarendra Roy, had been substantiated. 10. Learned trial Judge after considering the oral, and documentary and also material evidence adduced by the prosecution found that the prosecution charges had been proved beyond doubt. Relying upon the evidence of P.W. 16, B.G. William, coupled with Ext. 22 he came to the finding that the prosecution had sufficiently proved that the Calcutta Port Commissioners had received the consignment sent by American Consulate General containing the crates of auto parts in question. Further, according to learned trial Judge, this witnesses (P.W.16) has shown the prosecution allegation that out of 5 crates of auto-parts sent by the American Consulate only four crates were received and the fifth, viz.; the Box No. 7613 was not taken delivery of, as it was in broken condition and some articles from within this box were then found missing. This witness has also identified that box which is Mat Ext. XII. This P.W.16 did not step here. He went a step further and deposed that the articles being Mat. Exts. III/I to III/12, i.e., the allegedly stolen articles were identical with the articles contained in the wooden box (Mat. Ext. XII). This witness has also identified that box which is Mat Ext. XII. This P.W.16 did not step here. He went a step further and deposed that the articles being Mat. Exts. III/I to III/12, i.e., the allegedly stolen articles were identical with the articles contained in the wooden box (Mat. Ext. XII). In other words, the evidence of this witness clearly shows the articles which were found missing from one of the 5 crates at the time of delivery to be identical with the articles which have been subsequently recovered from the possession of the accused persons. Learned trial Judge believed and relied upon the testimony of this P.W.16 since he had absolutely nothing before him to disbelieve the same, all the vital statements remaining totally unchallenged in the cross-examination of this witnesses. 11. Learned trial Judge was also satisfied that it had been abundantly established from the evidence on record that the accused No.2, Amarendra, being posted as the Lock Fast Clerk at the relevant time had full dominion over the property in question. In order to arrive at this finding he relied upon the depositions of P.Ws. 9 and 14. The P.W.9, Md. Maniruddin states that, he was a Lock Fast Clerk in 1970, i.e., at the time of occurrence and that the accused No.2 Amarendra Roy was also a Lock Fast Clerk in the same shed and on 20.4.70 in morning at 6-30 A.M. he (Md. Maniruddin) went to take the key of the Lock Fast from the KGD out post in order to attend to his duty and before he took up the charge the accused No.2 had worked there his duty hours being from 9 A.M. to 5 P.M. on 19.4.70. This witness gives a description of the system of locking of different Lock Fast of the shed by the Lock Fast Clerk. According to his version, at the close of the duty hour each day, the concerned Lock Fast Clerk has to check up locks of each Lock Fast, and to deposit the keys in the out-post after putting the Lock Fasts under lock and key. This witness has further stated that on the date of occurrence, i.e., 20.4.70 he left the Lock Fast at the close of his duty hour after getting permission from the Assistant Superintendent. This witness has further stated that on the date of occurrence, i.e., 20.4.70 he left the Lock Fast at the close of his duty hour after getting permission from the Assistant Superintendent. This witness has also proved the signature of the accused No.2, Amarendra on the attendance register dated 20.4.70 (Ext. 5). The further evidence of this witness is that, on the next day, i.e., 21.4.70 when he went to attend his duty in the morning and to take the key from the out-post, he was told by the police officer that the key had been sealed on the previous day and he was to contact the Assistant Superintendent. Then he came to the spot and found that the locks had been sealed in respect of the Lock Fast No.1 and thereafter at about 1 P.M. the police officer and the officers of the Calcutta Port Commissioners came there and the seal of the Lock Fast No.1 was broken in presence of all of them and entered there and began to make searches and seizures. The broken wooden box (Mat. Ext. XII) was found inter alia inspite of Lock Fast No.1 at this time. P.W.14, Nanku Jaswara, who used to work at Cargo Tindal at B.K.G.D. has also said that at the relevant time at B.K.G.D., Maniruddin and Amarendra were Lock Fast Clerks. He has also given the duty hours of this two clerks. He has also stated that the key of the Lock Fast was with the Lock Fast Clerk who used to open and close it. Learned trial Judge has relied upon the depositions of these two P.Ws. since he has not found anything in their cross-examination subjecting their credibility to question and he has come to the conclusion that the accused No.2 had dominion over the deposited property in his capacity as a public servant. It should be mentioned here, that the expression "dominion over property" means that the property has to be entrusted to the person concerned in the ordinary course of his duty and it is not necessary that such entrustment should be one, that is attended by legal formalities of the section (vide the decision is reported in AIR 1956 SC 575 and AIR 1961 SC 751 ). Learned Judge was satisfied that the ingredients of the section 409 IPC had been established as against the accused No.2, Amarendra Roy. 12. Learned Judge was satisfied that the ingredients of the section 409 IPC had been established as against the accused No.2, Amarendra Roy. 12. So far as the charge under section 411 IPC against the accused No.1, Biswambhar Rai is concerned, learned trial Judge has been of the opinion that the same has been also proved beyond all reasonable doubt from the materials on record. He has discussed and analysed the oral evidence of the P.Ws. particularly the P.Ws. Nos. 1 to 9 and P.Ws. 14, 16, 18, 20, 25, 26 and 30. He has found that the P.Ws. 1 to 4 who were the eye witnesses to the occurance and two of whom took active part in catching the accused No.1 red handed while he was about to escape with the stolen articles in a bicycle, have consistently supported the prosecution story as regards the allegation of receiving and retaining of stolen articles with the knowledge that they were stolen. 13. It has been argued before me on behalf of the appellants that the evidence with regard to the story of arrest of the accused No.1 on which the entire prosecution case is founded suffers certain contradictions and inconsistencies so much so that the prosecution case cannot be said to be substantiated beyond all reasonable doubt. Mr. Subir Ganguly, learned Advocate for the appellant No.2 drew my attention to some discrepancies in the depositions of the material P.Ws. Thus, the P.Ws. Ram Ekbal Singh who has said in his examination-in-chief that the accused No.1 tried to escape by pushing Narendra Singh, when he (this P.W.) reached there and caught him from behind and just at this time the Chief Security Officer also came up there, whereas the P.W.2, Narendra has stated that on being challenged by him the accused No.1 tried to escape giving him a push, when he (Narendra) caught him and furthermore, in his cross-examination he says that Ram Ekbal Singh informed them that some culprits had been arrested and at that time Shri Dasgupta (Chief Security Officer) was not with them but in his examination-in-chief, the P.W. No.2 (Narendra) has clearly stated that when the accused tried to escape giving him a push and he caught him, Ram Ekbal Singh came, running there and also held him and at that time Chief Security Officer, Mr. Dasgupta came there and the accused was taken to the Assistant Superintendent who contacted the police over phone. I am not impressed by this argument. That this accused was arrested on that day is an admitted fact [vide his statement under section 313 Cr.P.C. on the question as to who of the two watcher-cum-guards caught him first]. It is not unlikely that there may be some such slight variations touching the minute details, inasmuch as, they were giving their testimony about 7/8 years after the occurence. Had their statements been totally identical, that fact rather would have raised doubt in our minds that they were tutored. Similarly, the alleged discrepancy between the statement of P.W.2, Narendra, in his examination-in-chief and that in his cross-examination on the question of the Chief Security Officers presence in the spot is not to be taken as real. It is a cardinal principle of the law of evidence that the same question cannot be put twice before a witness, to elicit an answer different from that given at the first instance. Moreover, when Narendra (P.W.2) in his cross-examination says the above he refers to different scenarios. He says that at the time when Ram Ekbal Singh informed them that some culprits had been arrested, then the Chief Security Officer was not with them. This has no incompatibility with the statement of this witness made in his examination-in-chief that at the time when the Ram Ekbal Singh came running there and held the accused along with Narendra the Chief Security Officer came there. 14. This notion gains further ground when we consider the evidence of the Chief Security Officer (Amal Dasgupta) P.W. 29, himself. This has no incompatibility with the statement of this witness made in his examination-in-chief that at the time when the Ram Ekbal Singh came running there and held the accused along with Narendra the Chief Security Officer came there. 14. This notion gains further ground when we consider the evidence of the Chief Security Officer (Amal Dasgupta) P.W. 29, himself. He has stated that on receiving some source information that some constable of the Port Police in connivance with a shed staff of the BKG Dock were involved in pilferage of articles, he deployed vigilance watchers in and around the shed and himself was waiting about 50 yards off and about 4 P.M. he found a person in civil dress coming to the shed, parking his cycle by its side and 15/25 minutes after, he again found the same man coming out of the shed with a bag in hand when the vigilance watchers challenged him and apprehended him and after a slight scuffle, the man was apprehended by police and watchers and by that time he reached the spot and caught hold of the man and came back to the said office along with them and thereafter he requested the Deputy Dock Manager over telephone to inform the police. On a careful comparison of his testimony with those of the P.W.s 1 and 2, I find that they are in full harmony in respect of the material particulars. The P.W.1, Ram Ekbal Singh has stated that on the date of occurrance he along with 3 other watchmen, namely, Narendra Singh, Ramji Singh and SarifKhan was on duty as watcher at the Lock Fast No.1 of the B.K.G. Dock under order of the Chief Security Officer and they stood at different points and at about 4.30 P.M., he found the accused No.2, Amarendra, to come out of the office of the shed with a key in his hand and to open the door of the Lock Fast No.1 and thereafter that accused No.2 went inside the Lock Fast Room and came out soon and at that time the accused No.1 who was standing on the cement seat took an empty handloom bag from the carrier of his cycle and went to the accused No.2 and then both of them entered inside the Lock Fast No.1 and this witness saw the entire incident through the wire-netting. Thereafter, accused No.2 drew something from the eastern side towards the western side and a little later, both of them came to the Lock Fast door and accused No.2 handed over that handloom cloth bag to the accused No.1 in loaded condition. The P.W.1 has further stated that when he saw the accused No.1 to come out to the Lock Fast room with the bag, he signaled Narendra Singh (P.W.2) to go to the place where the cycle of the accused No.1 had been kept and he himself also moved in that direction and he further saw that the accused No.1 having reached near his cycle transferred the bag from his right hand to his left hand and extended his right hand to get hold of the handle of the cycle and at that very moment Narendra Singh clasped him around. P.W.1 further says that the accused No.2 who had come out of the Lock Fast along with the accused No.1 closed the door of the Lock Fast, locked it and went inside the office in a hurry. The further evidence of the P.W.1 is that the accused No.1 tried to escape by pushing round Narendra and by that time he (P.W.1) himself reached the spot and caught him from behind and just at that time the Chief Security Officer came there and thereafter they took the accused No.1 along with bag and the cycle to the office of the shed concerned. 15. The above evidence of the prosecution has been strengthened by the fact that the said accused while being examined under section 313 Cr.P.C. has admitted this part of the prosecution allegation that he was caught on that date by those P.Ws. I am of the opinion that the evidence of the P.Ws.1, 2, 3, 4 and 29 remaining practically unassailed coupled with the documentary evidence, viz., the seizure lists showing recovery of the offending articles from the possession of the accused No.1 has proved the prosecution charge of dishonest retention or receiving of stolen properties by the accused No. 1 with the knowledge that they were stolen and has further, proved that the accused No.2, Amarendra, abetted the commission of this offence by the accused No.1. The next point canvassed on behalf of the appellants is that the trial Court ought to have held that the seizure of the goods was illegal and void since no respectable or independent person of the locality was made a witness in any of the seizure list and thereby a failure of justice was caused. The Investigating Police Officer who seized various articles just after the occurrence has been examined as P.W. No. 22. In his cross-examination it has been taken from him by the defence that at the time of seizure of the articles no outsider was present, because outsiders were not permitted to enter into the dock area, nor did he make any attempt to bring outsider during the seizure as it was not permissible to bring them in the dock area. These statements of the I.O. have not been shaken and they provide satisfactory explanation for the omission on his part to procure some independent local witness to the seizure of the goods in question. It should be borne in mind that the mandatory provision of calling upon two or more independent and respectable inhabitant of the locality to be witnesses to the search or seizure as contemplated under section 100 of the Cr.P.C in connection with formal searches under warrants under sections 93 & 94 Cr.P.C. does not apply to the present case. In an emergency when the police is going in for the purpose of general investigation, there is no provision which imposes on them the duty of making seizure or search after procuring such respectable persons of the locality. The above contention for the appellants therefore is without any force. 16. The next contention advanced on behalf of the appellants is that the learned Trial Judge misread the scope of section 33 of the Evidence Act and erroneously held that the evidence of the P.Ws 10 and 11, both of whom died before being cross-examined after charge by the defence, was admissible. According to learned Counsels for the appellants the statements made by these two P.Ws. in their examination-in-chief ought to have been expunged and the Court below could not rely upon the same and therefore the findings arrived at by him on the basis of such evidence became vitiated by illegality. 17. According to learned Counsels for the appellants the statements made by these two P.Ws. in their examination-in-chief ought to have been expunged and the Court below could not rely upon the same and therefore the findings arrived at by him on the basis of such evidence became vitiated by illegality. 17. Under section 33 of the Evidence Act, evidence given by a witness in a judicial proceeding is relevant for the purpose of proving in a later stage of that judicial proceeding the truth of the facts which it states when the witness is dead, provided that the adverse party had the right and opportunity to cross-examine him. Here the P.Ws. 10 and 11 were examined-in-chief and then the defence declined to cross-examine them before charge. On a later date charge was framed and thereafter when the question of cross-examining them after charge arose, they could not be produced for the purpose since both of them had died by that time. 18. The question is whether the fact that these two witnesses were not cross-examined by the defence, although they were given an opportunity to cross-examine them after their examination-in-chief was over before framing of charge should be taken as sufficient fulfilment of the condition laid down under the proviso to section 33 and that should debar the defence from claiming the benefit of exemption. In a Division Bench judgment of this court in Kalyan Lahiri vs. The State, reported in 1980 Cr.L.J. 484 the learned Judges relying upon the decisions reported in AIR 1950 Cal 435 , AIR 1954 Cal 395 and AIR 1957 Cal 677 held as follows. "In a warrant case the accused has no right to cross-examine the prosecution witnesses before framing of charge and his right to cross-examine the witnesses arises after the charge and therefore where in a prosecution under section 409 IPC the prosecution-witness after his examination-in-chief before the framing of charge died and could not be called for cross-examination after the charge, his evidence is inadmissible under section 33, Evidence Act; Even if the accused declined to cross-examine the witness before the charge, the evidence of such witness would not be admissible under section 33, because the accused was deprived of his right and opportunity to cross-examine after the charge because of the death of the witness." 19. In the instant case the facts are almost identical. In the instant case the facts are almost identical. The charge is under section 409 IPC inter alia and it is a warrant-procedure case. The two witnesses in question were examined-in-chief, but at that stage defence declined to cross-examine them and after the charge was framed they could not be produced by the prosecution for cross-examination by the defence because of their death in the meantime. It cannot be denied that the defence having not got the chance of cross-examining these two witnesses after charge may have to suffer prejudice if the statements of those two P.Ws. without being subjected to cross-examination are relied upon and thereby the object with which the provisions of section 33 were introduced would be frustrated. In that view of the matter the decision of the trial court that the evidence of the P.Ws. 10 and 11 were admissible was clearly erroneous. 20. The next question is if the evidence of the P.Ws. 10 and 11 are not taken into consideration, whether the finding of guilt arrived at by the learned Trial Judge will still hold good. The prosecution in this case examined as many as 29 witnesses besides the P.Ws. 10 and 11. If it is found that what these two P.Ws. deposed is available in the evidence of orders then certainly the omission will be made good. 21. The P.W. 10, Nandadulal Datta, who was a Lock Fast Clerk in the 'B' Shed of KG Dock in August, 1970, is a mere seizure list witness in respect of a seizure of the wooden case (Mat. Ext. XII) and its contents (Mat. Ext. XII series), Lock Fast Register, Unconnected Lock Fast Register and Memo Book (Exts. 14 & 15). If the evidence of this P.W. is treated as expunged, the prosecution will not suffer any loss since there is no dearth of seizure list-witness and it is found that a host of witnesses have performed this job well in particular, the P.Ws. 8, 9, 16, 22, 30 and 31 have testified to the seizure or formally proved the seizure lists in respect of these articles or documents, as the case might be. 22. P.W.11, Bhawani Charan Mukherjee, who was the Assistant Superintendent of Prosecution, Calcutta Port Commissioners, is the other witness who died after being examined-in-chief by the prosecution but before being cross-examined by the defence. 22. P.W.11, Bhawani Charan Mukherjee, who was the Assistant Superintendent of Prosecution, Calcutta Port Commissioners, is the other witness who died after being examined-in-chief by the prosecution but before being cross-examined by the defence. What he stated is that his duty was to connect the pilfered articles with the cargo in question and on 21.4.70 on being called by the Dock's Manager he went to the South Port Police Station and inspected the articles kept in a cloth hand bag (Ext. II) and then he went to the Lock Fast No.1 and inspected the contents of a wooden case (Ext XII) and found them similar with the articles found in the said cloth hand bag (Ext.II). This witness further stated that he brought out a packet from that wooden case and handed it over to the I.O. who seized it under a seizure list on which he put his signature and that he got a packing list from one Williams of American Consulate and verified the contents of the wooden case with reference to that packing list and he put tick marks on the items of the list indicating that they tallied with the articles found in the wooden case. Besides this, this witness put his signature as a witness on a number of seizure lists which were preferred in his presence and he also says that his signatures have been marked Exts. 1/14 to 1/18 while the documents concerned were marked as Exts. 10, 17, 18 and 19. Moreover, a number of articles which had been marked as Material Exhibits were shown to this witness when he identified them, viz., Mat Exts. II, IV, X, XII, XIII and XVI. 23. So far as the formal proof of the seized documents or identification of the seized articles is concerned, it is found that P.W.9, Maniruddin, P.W.13, John S. Nathanian, P.W.16, B.G. Williams, P.W.18, Chittaranjan Chatterjee, P.W.22, Asutosh Paul, P.W.27, Answar Ahmed, P.W.30, P.R. Bhattacharya and P.W.31, Sailendra Nath Sarkar have done this job in respect of this or that exhibit so that there is no scope for saying that due to the absence of the evidence of P.W. 11, the above mentioned documents or articles cannot be treated as exhibited for want of formal proof or identification. So far as the other part of the evidence of P.W.11 is concerned, that is, his statement to the effect that he inspected the contents of the wooden case and found the articles kept in the cloth hand bag (Ext.II) similar with the contents of the wooden case (Ext. XII), prosecution has nothing to suffer due to the evidence of this witness being expunged. Because, P.W.16, B.G. Williams, a shipping clerk in the office of the American Consulate General, has also made this very statement. He has stated that the articles being marked Mat. Ext. III series are identical with those in the wooden box (Ext.XII). 24. It is now to be seen whether the charge against the accused No.2, Amarendra Roy under section 409 IPC can be said to have been established. According to section 409 IPC whoever, being in any manner entrusted with property or with any dominion over any property in his capacity of a public servant dishonestly misappropriates or converts to his own use that property commits criminal breach of trust in respect of that property. That this accused is a public servant is undisputed. Admittedly at the relevant time he was posted as Lock Fast Clerk under the Calcutta Port Commissioner. It is in evidence that as Lock Fast Clerk it was his duty to take charge of a cargo unloaded from any ship and to keep the articles in the Lock Fast. The Lock Fast Clerk's responsibility also included the taking of the keys of the concerned Lock Fast from the KGD. Police outpost for opening the Lock Fast and after the duty hours are over to put the Lock to the Lock Fast and deposit the days to the outpost again. Vide the evidence of P.W.9, P.W.14 & P.W.18. P.W. 25, S.K Ojha, who was a constable posted at the KG Dock in question testifies to a GD entry (Ext.26) which was written and signed by him relating to the deposit of key of the Lock Fast of that Dock on the date of occurrence. This is a matter of official record and I do not find anything in his cross-examination to disbelieve his statements or the entries of Ext-26. This is a matter of official record and I do not find anything in his cross-examination to disbelieve his statements or the entries of Ext-26. Then again, P.W.30, P.K Bhattacharya, a shed clerk at the Dock, whose duty was to make tally of the cargo unloaded from the Ship and given to the Lock Fast Clerk for keeping them in the Lock Fast proves the tally sheet prepared by him (Ext-3) and states that the four wooden cases were deposited with the Lock Fast Clerk, Amarendra Roy, the accused No.2 (identified) who put his signature on the tally slip on receiving the same. In the cross-examination of this witness it has been taken that there is no document to show that the articles exhibited in this case were given and taken back from him and that it was not possible for him then to identify the articles exhibited in this case. The witness was disposing about 13/14 years after the articles were handed to the Lock Fast Clerk and there is nothing unusual in his inability to identify the articles under this tally slip after such lapse of time. But the fact that these Exts. 3 and 3/1 are marked without objection and that there is no denial to the alleged putting of signature by this accused (Amarendra) on that document signifying receipt of the articles contained in the four crates are sufficient to show that the said accused was engrusted with them in his capacity as a Lock Fast Clerk. 25. The P.W.5, B.N. Ghosh, who was Asstt. Superintendent, Traffic Department, Calcutta Port Commissioners at that time, and who was on duty at the A & B Sheds, K.G. Dock, has stated that on 20.4.70, i.e., the date of occurrence two clerks were in charge of the Lock Fasts, viz., one Mr. Maniruddin from 6.30 A.M. to 3.30 P.M. and another, Amarendra Roy (the present accused No.2 being identified) from 9 A.M. to 5 P.M. P.W.6, A.C. Ghosh, a Tally Supervisor, B.K.G.D., C.P.C. at that time, corroborates P.W.5 by saying that on 20.4.70 he was on duty from 3.30 P.M. to 10.30 A.M. and coming to the office he saw Amarendra Roy (the accused being identified on dock) at Lock Fast No.4 on duty as Lock Fast Clerk. Another employee of the Calcutta Port Commissioner S.K. Chakraborty, P.W.7, corroborates the P.Ws. Another employee of the Calcutta Port Commissioner S.K. Chakraborty, P.W.7, corroborates the P.Ws. 5 & 6 by stating that on 20.4.70 he (this witness) was on duty from 9 A.M. to 5 P.M. and on that day after 3.30 P.M. he saw the accused Amarendra (identified on dock) as on duty as Lock Fast Clerk and he saw him to leave office at about 4.30 P.M. P.W.9, Maniruddin, another Lock Fast Clerk, has stated that on 20.4.70 he did his normal duties in the office after taking the key of the Lock Fast from out-post and on that day the accused . No.2, Amarendra, attended the office and it was his responsibility to deposit the key of the Lock Fast in the out-post. This witness has further stated that there were 4 Lock Fasts in the B. Shed of the KGD and all the Lock Fasts used to be looked after by him and the accused No.2 and on the close of the duty hours each day, the concerned clerk used to check up the lock of each Lock Fast and put both locks in each Lock Fast and thereafter deposit the keys in the out-post. He has further stated that on 20.4.70 he left the Lock Fast at about 2.30 P.M. after completing the day's work and before he left the office he handed over the keys of the Lock Fast to the accused No.2 after obtaining permission from Assistant Superintendent, Shri Alok Basu. This witness has also proved the signature of the accused No.2, Amarendra on the Attendance Register for that date, i.e., 20.4.70 which has been marked Ext.5. He has further stated that on the next day, i.e., 21.4.70 when he came to attend his duties in the morning and went to take the key from the police out-post he was told that the keys had been sealed on the previous day and thereafter he came to know about the incident. This witness has also testified to the seizure of certain important documents and articles from the Lock Fast by the investigating police officer in presence of himself and others. For example, he was a witness to the seizure of the Lock Fast Register in respect of an entry dated 7.4.70 (Ext. IX) which was made by the accused No. 2 on receiving the wooden case in dispute (Mat.Ext.XII). For example, he was a witness to the seizure of the Lock Fast Register in respect of an entry dated 7.4.70 (Ext. IX) which was made by the accused No. 2 on receiving the wooden case in dispute (Mat.Ext.XII). These statements of this witness remain hardly challenged in the cross-examination and I have nothing to disbelieve them. The P.W.14, Nanku Jaswara, who was posted as Clerk Tindal at the B.KG.D. has also stated that on 20.4.70 he went to the Lock Fast No.1 to enquire about any note and found cargo from the Lock Fast Clerks at 11 A.M. and on that date the duty hours of Amarendra Roy was from 10.30 A.M. Again, the P.W. 25, S.K Ojha, who was posted as a constable in the K.G. Dock in question at the relevant time has proved the G.D. entry in respect of deposit of key of the Lock Fast whereupon the accused Amarendra put his signature while depositing the keys of the Lock Fast as per that G.D. entry giving the time therein. The defence did not raise any objection to the admission of these documents into evidence. P.W. 26, KB. Pradhan also says that the accused, Amarendra Roy was on duty as Lock Fast Clerk in the Lock Fast on 20.4.70 and at about 4.30 P.M. the Lock Fast Clerk, Amarendra, called him and asked him to find out the identity of a man who was sitting in the shed at that time. There is practically nothing in his cross examination to indicate that such statements are subject to any question. All these oral evidence coupled with the documentary evidence, namely, Exts. 3, 3/1, 5, 6, 15, 27 and 28 go to prove beyond doubt that the accused, Amarendra Roy, a Lock Fast Clerk, was on duty on the date of occurrence in the Lock Fast of the B.K.G.D. in question and received a consignment and kept the same in his charge. The evidence of the P.W. 30, in particular, together with the Tally Sheet (Ext.III) clearly shows that the cargo unloaded from the ship consisting of 4 cases of which the wooden package of one case being No. 7013 was broken, though the articles contained in the wooden case was intact, were deposited with the Lock Fast Clerk, Amarendra Roy (accused No.2) for keeping the same in the Lock Fast. This fully proves that the accused No.2, Amarendra Roy, who was a public servant within the meaning of section 21 IPC had dominion over the properties in question kept in the Lock Fast under his charge and this dominion was the result of entrustment. In this connection, the settled position of law as to who may be said to have dominion over any property arising out of entrustment may be mentioned. In Morgan and Macpherson 365 it has been observed that persons in whom confidence is placed as to the custody or application of a particular property whether it be by legal authority or private contract or consent, persons as clerks agents, servants or otherwise, under whatsoever name, have a confidence reposed in them by their employers and are, whether in the ordinary course of their employment or only occasionally entrusted with the property and persons whose employment does not extend beyond the particular occasion on which they are so entrusted, seems to be within the section. 26. The other essential ingredient of the offence of criminal breach of trust is dishonest misappropriation, that is, conversion to one's own use of the property in question or use or disposal of that property with dishonest intention. Dishonest intention means and implies the doing of an act with the intention of making wrongful gain thereby causing wrongful loss to owner of the property. 27. In the present case, as it has been shown above, the established facts are that the American Consulate General imported 5 (five) crates (wooden boxes) of auto parts, but out of them one box was found broken and some articles from within that box were found missing and hence that box was not taken by the Consulate and they took delivery of the four crates which were in good condition. This broken wooden box has been marked Ext.XII. From the prosecution evidence it also transpires that the Calcutta Port Commissioners received the above mentioned consignment sent by the American Consulate General and kept the same in the Lock Fast which is used as the godown. This broken wooden box has been marked Ext.XII. From the prosecution evidence it also transpires that the Calcutta Port Commissioners received the above mentioned consignment sent by the American Consulate General and kept the same in the Lock Fast which is used as the godown. It has been also proved from the evidence of the P.W.1 that on 20.4.70 at about 4.30 P.M. the accused No.2, Amarendra, came out from the Lock Fast situated at the ground floor and handed over some articles, namely, motor parts, to the accused No.1, Biswambhar Rai, who tried to escape with the same, but was caught red-handed by some watchmen. The P.W.1 who eye-witnessed the occurrence through the wire-netting has given a description of how the accused No.2 at 4.30 P.M. on 20.4.70 came out from the shed-office with a key and opened the door of the Lock Fast No.1 and how the accused No.1 taking an empty bag from the carrier of his cycle went to the accused No.2 and then both entered into the Lock Fast no.1 and the accused No.1 drew something from the eastern side to the western side and thereafter both the accused came to the Lock Fast door and the accused No.2 handed over that handloom cloth bag back to the later in loaded condition. Thereafter, the P.W.1 seeing the accused No.1 to come out gave a signal to another watchman, Narendra Singh (P.W.2) who was on duty at the varandah of the shed and then they came to the place where the cycle of the accused No.1 was kept standing and by their joint effort they caught hold of that accused No.1 while he was trying to flee with that bag in his cycle. The further evidence of the P.W.1 is that after the accused No.1 was caught red-handed along with that stolen handloom cloth bag, the Chief Security Officer came there and then they took the said accused along with the bag and the cycle to the office before the Assistant Superintendent, C.P.C. who rang up the police. The police officer came and arrested that accused and seized that bag which was found to contain twelve packets of motor parts. During the trial this cloth bag has been marked Mat. Ext.II and the twelve packet contained in it marked Mat. Ext.III/I to III/12. The police officer came and arrested that accused and seized that bag which was found to contain twelve packets of motor parts. During the trial this cloth bag has been marked Mat. Ext.II and the twelve packet contained in it marked Mat. Ext.III/I to III/12. His further evidence is that the accused No.2 came out of the Lock Fast No.1 along with the accused No.1, closed its door, locked it and went inside the office in a hurry and at the time when the arrest of the accused No. 1 and the seizure of the said articles were over, the accused No.2 was not found in the office. The watchman, Narendra Singh (P.W.2) and the Chief Security Officer, Amal Dasgupta, have corroborated the P.W.1. Coming to his cross-examination I find that he has stood the test well. I have already scanned his testimony above and I am to repeat that there is nothing significant in his cross-examination which may put his statements in the examination-in-chief to question. In his cross-examination he has, however, stated that he did not seize the bag when the accused was carrying it or he did not verify the contents of the bag before the accused was taken to the office and, further, to a question put by the court this witness has replied that he did not put any initial on any of the articles found inside the bag. But these statements of the P.W.1 take us nowhere. It is clear from his version in his examination-in-chief that as soon as the accused No.1 was caught by them, they took him along with the articles straight to the office of the Assistant Superintendent and the bag containing the articles remained there intact in presence of all of them till police officer from the out-post came there. It is nowhere the suggestion of the defence that during the period commencing from the arrest of the accused till he was taken to the office room they were changed in any way or substituted by any new incriminating articles. On the other hand, from the manner in which the articles found with that accused were dealt with as per the evidence of those P.Ws. On the other hand, from the manner in which the articles found with that accused were dealt with as per the evidence of those P.Ws. one is given the impression that the very articles which were recovered from the possession of this accused remained intact and in the same position in which they were ultimately seized by the Investigating Officer. Had the articles been not seized at that very sitting, but the seizure was deferred to a different time, then of course there could be scope for such a suspicion. But such a possibility is ruled out, inasmuch as, the goods remained under the watch of all the persons present including the accused himself throughout the entire period prior to their seizure. 28. The above discussion shows that all the ingredients of the offence of criminal breach of trust under section 409 IPC against the accused No.2, Amarendra Roy have been established by the prosecution beyond all reasonable doubt. It has been proved that the accused Amarendra Roy being a public servant in the employment of Calcutta Port Commissioners as a Lock Fast Clerk in the 'B' Shed King George's Dock was entrusted with the dominion over certain properties, namely, Piston Valve Auto Parts [Exts.III/I to III/12 along with other articles seized] in his capacity as a public servant committed breach of trust in respect of the same by dishonestly misappropriating or converting to his own use that property. Thus the charge against this accused of an offence under section 409 IPC has been substantiated beyond any shadow of doubt. 29. As I have already shown above, the charge under section 411 IPC against the accused No.1, Biswambhar Rai has been also fully established, the said properties having been recovered from him while he was trying to flee away with them. It should be mentioned here that under section 410 IPC property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed is designated as stolen property. From the evidence discussed above, it is also clear that the said stolen properties were handed over to the accused, Biswambhar Rai by the accused, Amarendra Roy and thereafter the former was trying to flee away with the same when he was caught red-handed by the watch- men of the dock. From the evidence discussed above, it is also clear that the said stolen properties were handed over to the accused, Biswambhar Rai by the accused, Amarendra Roy and thereafter the former was trying to flee away with the same when he was caught red-handed by the watch- men of the dock. Therefore, the ingredients of section 109/411 IPC are also fulfilled, inasmuch as, the accused No.1 committed the offence of receiving or retaining stolen properties with the aid and assistance of the accused No.2, Amarendra Roy. Under section 107 (third clause) of the Cr.P.C. a person abets the doing of a thing who intentionally aids, by any act or illegal omission, the doing of that thing. Under explanation 2 of this section it is provided that whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act. Here, accused No. 2 intentionally aided the act of receiving of stolen property by the accused No.1 by supplying the said property in his hands after taking them from his own custody. In that view of the matter, the second charge against the accused No.2, Amarendra Roy, under section 411/109 IPC appears to have been established beyond all doubt. 30. Apart from the oral and documentary evidence relied upon by the prosecution discussed above to prove the guilt of this accused No.2, prosecution places reliance on some circumstantial evidence too. It is in evidence that the accused No.2, Amarendra remained absent from office on two consecutive dates following the date of occurrence without any intimation and he was found absconding during this period. A search for him was conducted by the La. of the case in his house, on 21.4.70, but he was not traced. It has further transpired from the evidence that it was the duty of the accused No.2 as the Lock Fast Clerk to put locks in the Lock Fasts and deposit the keys in the King Georges Dock police out-post everyday after his duty hours were over, but on the date of occurrence, i.e., 20.4.70 accused No.2 did not deposit the keys of the Lock Fasts to the out-post in the afternoon he having fled seeing the accused No. 1 to be caught red handed. A Thunder Lock left behind by this accused without locking the door of the Lock Fast No.4 with it was seized by the I.O. just after the occurrence which has been marked Mat.Ext.IV. Further, from the Lock Fast No.1, one Raleigh Bicycle bearing one cane basket on the carrier, both belonging to the accused, Amarendra, was recovered (Mat. Exts. V & VI). The cane basket contained some straw and old newspapers. Besides, two empty gunny bags (Mat.Ext.VII) two handloom bags (Mat.Ext.VIII), one gunny bag with untied mouth containing 25 packets of autoparts (Mat.Ext.XI) and two steel trays containing 42 loose autoparts (Mat Ext.XVI) were also recovered from this room. It is in evidence that the keys of the Lock Fasts are held by the Lock Fasts Clerks exclusively and no other employee or person has any access to the Lock Fast. It is also in evidence that no entry in the unconnected Lock Fast Register (Ext.B) was made regarding the above mentioned loose auto parts recovered from the Lock Fast-I and that the various articles kept in that Lock Fast were not entered in the concerned Manifest Registers (Exts. 42 & 43). According to the prosecution these are strong circumstances serving as a sure pointer to the guilt of this accused. It is argued on behalf of the prosecution that above mentioned articles viz., the gunny bags, the cane baskets, the trays etc. belonging to the accused, Amarendra, the Lock Fast Clerk in-charge, being found in the Lock Fast No.1 only lends support circumstantially to the findings already arrived at on the strength of oral and documentary evidence that this accused was misappropriating and converting to his own use a variety of autoparts in dispute which had been given to his charge in course of his official duty for being kept there and thereby he committed criminal breach of trust. 31. 31. It has been urged by the Learned Counsel for the appellants that it is an old case having been instituted in the year 1970 and as many as 30 years approximately have elapsed since then and thus the salutary object with which Article 21 of the Constitution was enacted has been given a go-bye and the right to life or personal liberty as enshirned in that Article has been denied to the accused persons who have been subjected to the rigors and sufferings due to a protracted trial for such a long time while the expression "personal liberty" as used under this article includes the right of a person to speedy trial. In support of his contention, the learned Lawyer has referred to a decision of the Supreme Court reported in AIR 1997 SC 3400 . On a perusal of this Division Bench judgment I find that in this case, the Hon'ble Court held that since the incident was of 1983, after a lapse of 14 years it would not be fair and just to direct that the proceedings might again be initiated from the stage of sanction so as to expose the appellant to enter cognizance of litigation and keep him on trial for an indefinitely long period contrary to the mandate of Article 21 of the Constitution which as part of right to life philosophizes early end of a criminal proceedings through a speedy trial. So it is clear that this finding was arrived at by their Lordships in a different background. In that case under reference the sanction which was required to be obtained before a prosecution could be lodged against the accused person who was a public servant was found to have been rendered illegal and invalid with the consequence that the whole proceedings stood void ab initio. But, normally when the sanction order was found to be bad, the case was to be remitted back to the authority for reconsideration of the matter and passing a fresh order of sanction in accordance with law. Since resorting to such a procedure at that juncture would involve a lengthy process, their Lordships made the above observation expressing the view that it would be contrary to the mandate of Article 21 of the Constitution. In the instant case, no such question arises and the criminal case against the accused persons is on the verge of final disposal. Since resorting to such a procedure at that juncture would involve a lengthy process, their Lordships made the above observation expressing the view that it would be contrary to the mandate of Article 21 of the Constitution. In the instant case, no such question arises and the criminal case against the accused persons is on the verge of final disposal. Hence the contention that relying upon this decision, the accused persons of this case who have been otherwise found to be guilty of the offence with which they were charged should be acquitted simply because there has been a lapse of long time for the trial of the case is not worthy of acceptance, particularly when the offences of which they have been found guilty are of serious nature. 32. Still another contention on behalf of the appellants is that the accused persons being public servants and the acts in question being done in the discharge of their official duties, obtaining of previous sanction for starting the prosecution against them was absolutely necessary and in its absence the entire prosecution has been void ab initio. But this is no correct. It is well settled principle of law that an offence arising out of an abuse of official position by an act not purporting to be official does not require sanction. The act of misappropriating the articles in question or of receiving of the same as stolen properties cannot be shown to be done in the discharge of official duty. Hence this is not a case where necessity of obtaining prior sanction will arise at all. 33. It should be mentioned that learned Counsel for the appellants has cited a number of reported judgments touching the principles behind appreciation of evidence, in order to drive home the point that in this case there are material discrepancies in between the statements of the eyewitnesses and in view thereof truth cannot be separated from falsehood and the prosecution story cannot be said to have been proved beyond doubt and in the result the accused persons are entitled to acquittal. But as I have shown above, the discrepancies in the testimonies of different material witnesses are only minor and do not go to the root of the prosecution case and during my threadbare analysis of the oral evidence I have shown how the witnesses have corroborated one another in a convincing manner. But as I have shown above, the discrepancies in the testimonies of different material witnesses are only minor and do not go to the root of the prosecution case and during my threadbare analysis of the oral evidence I have shown how the witnesses have corroborated one another in a convincing manner. The rulings referred to are the decisions of the Supreme Court reported in (1) AIR 1981 SC 1237 (Krishna Pillai Sree Kumar & Anr. vs. State of Kerala ) (2) AIR 1981 SC 1390 (State of Rajasthan vs. Smt. Kalki & Anr.). (3) AIR 1986 P.C. 60 (Bhojraj vs. Sita Ram & Ors.) (4) AIR 1975 SC 1962 (Balaka Singh & Ors. vs. The State of Punjab). (5) AIR 1975 SC 246 (Charan Singh & Ors. vs. State of Punjab), The principles enunciated in all these decisions have been followed by me meticulously in the matter of weighing and assessing the evidence on record. 34. In view of my above finding I am to hold that the learned Trial Court was justified in convicting the accused-appellants after finding them guilty of the offences with which they were charged. However, as regards the sentencing portion of the impugned order it may be mentioned that awarding of rigorous imprisonment for only one year for the offence under section 409 IPC in respect of the accused No.2, Amarendra, appears to be too lenient a sentence considering the gravity of the offence and the fact that the maximum punishment provided for this offence is imprisonment for life. Be that as it may, I am of the opinion that there is no question of reducing the sentence imposed by the Trial Court on either of the appellants. In the result, I am not inclined to interfere with the order of conviction and sentence passed against the appellants by the Trial Court and the appeal is dismissed. The appellants being on bail are directed to surrender to their bail bonds forthwith to serve out the sentences against them. After they have surrendered, their sureties and bail bonds shall stand discharged. If the appellants fail to surrender within a week from this date, the learned Trial Judge shall take them into custody to give effect to this order. Appeal is dismissed.