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2001 DIGILAW 401 (CAL)

Rahim Box Mollah v. State of West Bengal

2001-07-06

Joytosh Banerjee, Nure Alam Chowdhury

body2001
JUDGMENT Joytosh Banerjee, J.: These three appeals preferred by three appellants who were convicted in the Sessions Trial Case No. 6(1) of 1988 by Shri S.K. Kar, learned Additional Sessions Judge, 6th Court, Alipore, under section 302 read with section 34 Indian Penal Code and sentenced to R.I. for life and also to pay a fine of Rs. 5,000/- each in default to suffer R.I. for 3 years each, further convicted under section 392 I.P.C. and sentenced to suffer R.I. for 10 years and to pay a fine of Rs. 3,000/- in default R.I. for 2 years. The learned Sessions Judge also convicted all the three appellants under section 397 I.P.C. but did not pass any separate sentence for such conviction. Admittedly by an order passed in Criminal Revision filed at the instance of the State of West Bengal under section 220 of the Criminal Procedure Code trial of the 2 Sessions Cases, namely, S.C. No. 20(6)/88 was held jointly with S.C. No. 26(12)/87. After clubbing' together both the sessions cases, Sessions Trial No. 6(1)/88 was held wherein the learned Sessions Judge passed the order of conviction and sentence as noted above. 2. Rohit Kumar Gupta (P.W.18) came to Burtola P.S. on 3.3.87 and lodged one G.D., alleging that on 2.3.87 at about 7.30 a.m. his driver Sew Dhari Pandit took out taxi No.WMT 42 owned by Sri Gupta for plying the same on hire, but the driver did not return along with the taxi even at the time of lodging the F.I.R. On the early hours of 3.3.87 at about 1.30 hours. Shibu Mondal (P.W.22) came to Park Street P.S. and lodged F.I.R. alleging that on 2.3.87 at about 10.00 hours he went to attend the marriage ceremony of a person at 17/1A, Alipore Road also to take photograph of the marriage party. At about 01.00 hours on 3.3.87 he along with Sri Gopal Banerjee (P.W. 19) and Sri Nakuleswar Chatterjee (P.W.20) engaged a Taxi No. WMT 42 from Alipore Road to reach their houses. In such taxi there were two other unknown passengers excluding the driver and helper. The taxi started from, in front of 17/1A, Alipore Road. At about 01.00 hours on 3.3.87 he along with Sri Gopal Banerjee (P.W. 19) and Sri Nakuleswar Chatterjee (P.W.20) engaged a Taxi No. WMT 42 from Alipore Road to reach their houses. In such taxi there were two other unknown passengers excluding the driver and helper. The taxi started from, in front of 17/1A, Alipore Road. The two other passengers on reaching their destination got down from the taxi and the informant was proceeding in the taxi towards his house when the driver stopped the taxi at the crossing of Camac Street and Ho Chi Min Sarani. At that time, the witness was sitting at the rear seat of taxi with two other persons who suddenly started abusing him and those persons asked him to hand over the camera with flash gun which the informant had in a bag, wrist-watch and cash of Rs. 130/-. When the informant was hesitating those articles was snatched away by these persons and thereafter they decamped with those articles in the said taxi. There is yet another F.I.R. which lodged by Ratan Lal Mukherjee, Sub-Inspector of Police attached to Garden Reach P.S in the Port Division (not examined in connection with Sessions Trial) lodge information that on 3.3.87 at about 9.00 hours a dead body of an unknown person was found lying by the side of Transport Depot Road near the north western corner of the boundary wall of M/s. Stitcher Company, Transport Depot Road. The F.I.R. further disclosed that later, it came to light that the driver of WMT 42 had been missing since 2.3.87 and Rabidhari Pandit identified the dead body at Mominpur Police Morgue, Alipore as his missing brother Sewdhari Pandit. So a suo motu F.I.R. was lodged alleging from those facts and circumstances, the police officer reasonably believed that some persons in furtherance of their common intention robbed Taxi No. WMT 42 somewhere in the city and committed murder of its driver in side the said Taxi No. 42 and they threw the dead body at the Transport Depot Road near the place where the same was found. 3. 3. On the basis of the aforesaid information, the police started the 2 cases, one for robbery and the other for murder as indicated above and submitted the charge-sheet in the respective cases and pursuant to a direction upon the court below by this court under section 220 of the Criminal Procedure Code, both the cases were tried together by the Additional Sessions Judge, who after considering the evidence on record and the other relevant facts and circumstances, came to a finding that the prosecution successfully brought home the charges levelled against the accused/appellants and thereafter convicted and sentenced the accused/appellants as above. 4. Being aggrieved by such conviction and the sentence, the appellants filed three separate appeals challenging the judgement and the order of the learned Additional Sessions Judge, 6th Court. The only point for our consideration here is whether the order of conviction and the sentence imposed should sustain or not? 5. It transpires from the judgement impugned that the learned Additional Sessions Judge after discussing the evidence on record came to a finding that the victim was done to death by throttling with a piece of cloth which had been tied round his gullet and the same was unfastened immediately and was thrown away leaving no mark of ligature in the neck of the victim. Thereafter recorded his finding that all the circumstances cumulatively form a chain so complete that there was no escape from the conclusion that within all human probabilities, the murder was committed by the accused persons and none else. 6. But in doing so he has not noted the surrounding circumstances which according to him were sufficient to complete the chain. He has only discussed the evidence in general and pointed out why he should accept the evidence of any particular witness. Be that as it may, in this background this court is required to go through the evidence for above noted purpose. Before I proceed further in the matter I must point out that through this trial, two incidents which took place in course of the same transaction, were covered. Be that as it may, in this background this court is required to go through the evidence for above noted purpose. Before I proceed further in the matter I must point out that through this trial, two incidents which took place in course of the same transaction, were covered. So it is necessary that these should be examined, with reference to evidence on record - separately in order to ascertain whether the prosecution is in a position to bring home the charge levelled against the accused persons firstly under sections 392 and 397 I.P.C. After that it should be considered whether the charge raised under section 302 read with section 34 I.P.C. has been proved against the appellants or any of them. 7. On the point, of robbery punishable under section 392 I.P.C. the prosecution has examined some witnesses, namely, P.W.18 Rohit Kumar Gupta, registered owner of Taxi No. WMT 42. P.W.19 Gopal Banerjee who is a photographer by profession and who on 2.3.87 had been to 17/1A, Alipore Road in the house of one Mr. Goenka to take photograph in connection with the marriage ceremony in the family of Mr. Goenka along with his assistant Nakuleswar Chatterjee (P.W.20) and P.W.22 Shibu Mondal who is a photographer by profession and who had been to the same place for snapping the photographs in such marriage ceremony, P.W.23 Saroj Kr. Singh who purchased a camera with flash gun and other articles from accused Rohim Box Mollah. P.W.25, Prasenjit Mondal who as a Metropolitan Magistrate, Calcutta held T.I. Parade in respect of suspect Rahim Box Mollah, P.W. 26 D.S. Roy who held T.I. Parade in respect of suspect Fazle Haque Haldar, P.W.29 G. Ghosh Maulick who as a Judicial Magistrate, Alipore recorded the confessional statement of accused Fazle Haque Haldar under section 164 Cr. P.C., P.W. 30 Sk. Asmat, P.W. 31 Banamali Ghosh the witnesses who saw accused Rahim Box Mollah to ask P.W. 23 S.K. Singh to bring the camera and bag containing the other articles. 8. P.C., P.W. 30 Sk. Asmat, P.W. 31 Banamali Ghosh the witnesses who saw accused Rahim Box Mollah to ask P.W. 23 S.K. Singh to bring the camera and bag containing the other articles. 8. P.W. 18 Rohit Gupta, registered owner of Taxi No. WMT 42 disclosed in his evidence that on 2.3.87 his driver, Sewdhari Pandit, the victim took out above mentioned taxi after signing Garge Register in the morning time but he did not return in course of the day so on 3.3.87 morning he along with others had been to Burtola P.S. and lodged a diary about the missing driver with the taxi. On the same day at about 3/3.30 p.m. when he returned home he got a message from Park Street P.S. directing him to produce the driver and the taxi as there was a case of snatching in which taxi in question was involved. The cross-examination of the witness fails to disclose anything for which the evidence of the witness should be unacceptable to the court. Evidence of P.W.19 Gopal Banerjee, P.W. 20 Nakuleswar Chatterjee, P.W.22 Shibu Mondal indicate that they had been to 17/1A, Alipore Road in the house of Mr. Goenka in connection with taking photographs on the occasion of marriage and in the early hours of 3.3.87 they came out of the house. Shibu Mondal called the taxi and they found that already there were 4 persons, two of whom were occupying the rear seat other two were sitting in the front seat. Then P.W.19 along with P.W.20 occupied the front seat of the taxi and P.W.22 Shibu Mondal occupied the rear seat along with others. P.W.s 19 and 20 got down at Kalighat and P.W.22 proceeded further in that taxi. From the evidence of P.W.22 it further appears that when the taxi reached the crossing of Camac Street and Park Street in front of Bardhan Market, the driver stopped the taxi and then one of the occupants of the taxi slapped the witness, snatched away the wrist-watch, camera, cash money and other valuables kept in the bag from him. Three witnesses have further claimed that they identified the accused persons in the T.I. Parade. Their cross-examination fails to disclose any circumstance, for making their evidence unacceptable on this point. 9. Three witnesses have further claimed that they identified the accused persons in the T.I. Parade. Their cross-examination fails to disclose any circumstance, for making their evidence unacceptable on this point. 9. P.W. 25, P.W. 26 and P.W. 28 are the Magistrates who held T.I. Parade in respect of the accused persons wherein P.W.22 Shibu Mondal, P.W.19 Gopal Banerjee and P.W. 20 Nakuleswar Chatterjee identified the suspects. P.W.25 Prasenjit Mondal was Metropolitan Magistrate, Calcutta and on 10.4.87 he held T.I. Parade in respect of accused Rahim Box Mollah in Alipore Presidency Jail. All the three witnesses, namely, P.W.19 Gopal Banerjee, P.W.20 Nakuleswar Chatterjee and P.W.22 Shibu Mondal, identified accused Rahim Box Mollah whom they found inside the taxi. In this way, it transpires that the substantive evidence of P.Ws 19, 20 and 22 that in that fateful night they had to board the taxi No. WMT 42 where they found the accused persons inside the taxi and the further evidence of P.W.21 that after the taxi proceeded further, it was stopped at the junction of Park Street and Camac Street and one of the accused snatched away his wristwatch, camera, cash money, gets corroboration from the T.I. Parade of the accused persons held on different time by different Magistrates inside the jail. It is to be noted that P.W.26, D.S. Ray who was a Matropolitan Magistrate, Calcutta and who held the T.I. Parade of accused Fazle Haque Haldar inside the Presidency Jail at Alipore deposed before the court that P.W.22 Shibu Mondal identified accused Fazle Haque Haldar as the man who snatched away his wrist-watch, money and other two witnesses P.Ws. 19 and 20 identified him as co-passenger in the taxi. The T.I. Parade is an important thing for the purpose of investigation to connect the accused with the offence complained of. It is necessary that the T.I. Parade is held excluding all possibilities of collusion so that the result of the identification can be considered to be a reliable evidence in the trial. In this case each of the Magistrates who held T.I. Parade of the different accused persons of this case, who were placed in those T.I. Parade as suspects, noted in their report and also have testified that they held the T.I. Parade on being satisfied about excluding all possibilities of collusion. In this case each of the Magistrates who held T.I. Parade of the different accused persons of this case, who were placed in those T.I. Parade as suspects, noted in their report and also have testified that they held the T.I. Parade on being satisfied about excluding all possibilities of collusion. No doubt, there is a note in the T.I. Parade sheet by some of the Magistrates that the suspect complained before him that he (the suspect) had been shown to the witness while in the police custody but there is nothing to indicate that this allegation had been made before the T.I. Parade was held. There is also no other circumstances which can lead us to suspect that these T.I. Parades were not held properly or there was any possibility of collection in the way as alleged. It is to be noted further that accused persons were placed in the T.I. Parade within a reasonable time from the date of occurrence as noticed by learned trial court. 10. In a recent case, Daya Singh vs. State of Haryana, J.T. 2001(3) SC 16, Hon'ble Supreme Court observed as follows about the purport of the T.I. Parade:- "....the purpose of T.I. Parade is to have corroboration to the evidence of eye witnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the court. If that evidence is found to be reliable the absence of corroboration of T.I. Parade would not be in any material." In observing so the Hon'ble Court placed its reliance in the decision of the said court, the State of Maharashra vs. Suresh, J.T. 1999(9) SC 513: (2000) 1 SCC 471 , and quoted the following observation which clearly stated the real purpose of the T.I. Parade, as follows:- ".....we remind ourselves that the identification parades are not primarily meant for the court. This meant for investigation purposes. The object of conducting a T.I. Parade is two fold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is real, one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigation authorities that the suspect is the real person who the witnesses had seen in connection with the said occurrence." 11. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is real, one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigation authorities that the suspect is the real person who the witnesses had seen in connection with the said occurrence." 11. In the instant case, all the 3 relevant witnesses on the point of robbery have testified about the circumstances under which they had to board a taxi wherein other people were also seen travelling. All of them identified the accused persons as their co-passengers in Taxi No. WMT 42. Furthermore, P.W.21 clearly stated that one of those co-passengers snatched away all articles including his camera, money and other articles. The substantive evidence, the evidence of those witnesses to this effect gets corroboration through the T.I. Parade wherein they also identified the same accused persons and P.W. 22 Shibu Mondal further stated in the T.I. Parade identifying the accused Fazle Haque Haldar that he was the person who snatched away his camera, money and other articles. After the robbery the taxi in question, disappeared. Furthermore from the evidence of P.W.29 G. Ghosh Maulick, it transpires that he as the Judicial Magistrate, Alipore recorded the confessional statement of accused Fazle Haque Haldar under section 164 Cr.P.C. The confessional statement on being properly proved has been marked Ext. 27 in connection with the trial. From the evidence of the Magistrate concerned P.W. 29. It is found that he recorded the statements after repeating the statutory warnings and as per the procedure laid down in Rule 79 of the Criminal Rules and orders. Such statement made before a Magistrate by one of the accused who has been jointly tried with other accused persons has been criticised on the ground that the confession of guilt by the accessed did not affect him. In other words, the confession of the accused was exculpatory. It is the settled law that under section 30 of the Indian Evidence Act that the real test is not whether the confessing accused ascribes to himself a major or minor part in the crime, but whether when implicating his co-accused he gives a full and true account of the crime and unreservedly confesses his own share of the guilt, i.e. to say implicates him as fully and substantially as his co-accused. It may be that the part assigned to him is not a leading or a major one, but in any case there must be a confession to the fullest extent of whatever part he took in the commission of the crime. In the instant case, going through the confession it transpires that the accused indicated that he was inside the taxi but did not ascribe to himself any major or minor part in the crime of snatching or even in the crime of murder. In fact the evidence coupled with the T.I. Parade held in connection with the offence go to indicate that this was the accused who snatched away the articles from the witness P.W.22. But there is no indication to that effect in the confession. Therefore, it can be said that there was no full and complete confession of his own guilt and the part taken by him in the crime, but an embroidered story spun out with the object of clearing himself or reducing his own guilt at the expense of others. Therefore, I am one with the submission made by the learned Defence Lawyer that the confession here being exculpatory in nature, no reliance should be placed on such confession. 12. If the said confession is excluded then also I find that there is sufficient evidence to come to a conclusion here that prosecution has successfully brought home the charge under section 392 I.P.C. against all the 3 accused persons who are the appellants here. In the evidence already discussed and also in view of the further circumstance which is disclosed through the evidence of P.W.23 Saroj Kumar Singh, P.W. 30 Sk. Asmat and P.W.31 Banamali Ghosh whose oral testimonies go to show that accused Rahim Mollah sold one camera and some other articles to P.W.23 and on 27.3.87 he came to the house of P.W.23 along with police and asked the witness to produce the camera and other articles. On being produced by the witness the police seized those articles. On going through the elaborate cross-examination of the respective witnesses as indicated above, I do not find anything for which the evidence of those witnesses should be unacceptable for coming to a conclusion regarding the guilt of the accused in connection with the aforesaid offence. On being produced by the witness the police seized those articles. On going through the elaborate cross-examination of the respective witnesses as indicated above, I do not find anything for which the evidence of those witnesses should be unacceptable for coming to a conclusion regarding the guilt of the accused in connection with the aforesaid offence. In the facts and circumstances I hold that the learned Additional Sessions Judge has rightly convicted the accused/appellants under section 392 I.P.C. 13. So far the conviction under section 302 read with section 34 I.P.C. is concerned, the learned Additional Sessions Judge has rightly pointed out that the prosecution case here rested no the circumstantial evidence, but the learned Judge has failed to indicate in his impugned judgement, the specific circumstances which came out through the evidence on record, which the said court considered as sufficient to complete the chain in order to come to a decision that the murder of the victim could be committed by the accused persons only and none else. Before I proceed to consider the surrounding circumstances, to examine whether the ultimate decision of the court below is based on a firm footing or not, it should be pointed out that the learned Additional Sessions Judge in his judgement elaborately discussed the evidence of autopsy surgeon P.W.27 Dr. P.B. Das who held P.M. Examination of the dead body of the victim Sewdhari Pandit and after discussing his evidence including what the witness disclosed in the cross-examination came to a firm finding that the gullet and the neck of the victim (deceased) was tied by a piece of cloth (Mat.Ext.1), as a result of which the victim died due to cardio respiratory failure. He noted his opinion his opinion that no marks of ligature are expected to be noticed in the neck of the victim during P.M. Examination, as the victim was not hanged by a rope or a string round his neck, which was also not the case of the prosecution. Considering the circumstances, the learned Judge found that in all probabilities the victim had been done to death by throttling after a piece of cloth had been fastened round his gullet and the same was unfastened immediately and the same was thrown away, which did not leave any mark of ligature in the neck of the victim. Considering the circumstances, the learned Judge found that in all probabilities the victim had been done to death by throttling after a piece of cloth had been fastened round his gullet and the same was unfastened immediately and the same was thrown away, which did not leave any mark of ligature in the neck of the victim. In this way after fully discussing the evidence of the doctor who held the P.M. Examination, the learned Judge came to a firm finding that it was a case of murder. It is to be noted here that in course of elaborate argument by the learned Advocate for the appellants, no attempt has been made from the side of the appellant to dislodge such a firm finding. So the question is whether the surrounding circumstances are such as to complete the chain to establish a case of murder against the appellants or any of them? Going through the evidence of record, it transpires that P.W.18, the registered owner of Taxi No. WMT 42 had been to Burtola P.S. to lodge a diary when the driver of the taxi victim Sewdhari Pandit who had gone out with the taxi after signing the garage register at 7.30 a.m. on 2.3.87 failed to return in course of that day. P.W. 3 Giraja Maji, has a tea shop opposite to Transport Depot Road No. 26. He saw the dead body of an unknown person lying at the corner of Stitcher Company. He also found a cloth lying by the side of the dead body with a knot. He also identified the photograph of the dead body which on being identified was Marked Ext. 1/1. His cross-examination only indicates that the witness cannot read English script. P.W.4, Sitaram Mahato is a resident of 26, Transport Depot Road, he also found the dead body lying there on the same day at the same time. So also P.W. 5 Prodip Sinha an employee of Calcutta Tea Blenders Company and P.W.11 Kanu Biswas an employee of a nearby tailoring shop at the aforesaid address. P.W. 7, S.I. Chanchal Sarkar who at the relevant point of time was attached to Watgunge P.S. seized Taxi No. WMT 42 from in front of 2, Rangalal Street at the same time he also seized the driving licence of the victim Sewdhari Pandit along with some other documents from that taxi. P.W. 7, S.I. Chanchal Sarkar who at the relevant point of time was attached to Watgunge P.S. seized Taxi No. WMT 42 from in front of 2, Rangalal Street at the same time he also seized the driving licence of the victim Sewdhari Pandit along with some other documents from that taxi. At that time, the taxi was found lying abandoned. This version is also supported by P.W.8, Gulam Md. Khan and Sankar Lal Chowdhury P.W. 10, seizure list witness in connection with the seizure of the said taxi and who were residents of nearby places. P.W.I7 Ranjit Kr. Chakraborty is a resident of Chetla Hat Road and he is a driver by profession who at the relevant point of time used to work at Kaiolash Upadhya Company-cum-Garage at P-13, Transport Depot Road and used to drive a Jeep No. WNF 5625. It is his evidence that on 2.3.87 at about 8.30/9 p.m. he was returning home walking along the road when he found a taxi standing near their godown in that vicinity. He noticed that the taxi bore the registration No. WMT 42. It was drizlling, he approached the driver of such taxi and requested him to give him a lift either to Taratala Road or to Majherhat. At the sametime he found three persons who were sitting in the rear seat of the taxi. He also found one person who was lying on the lap of those three persons. The driver of the taxi refused him to give a lift. But in his evidence this witness did not give any indication how he could find a man lying on the lap of three persons who occupied the rear seat of the taxi. But in the cross-examination, the witness admitted that if the wiper of a vehicle was not in operation, nothing could be visible inside the vehicle due to accumulation of rain drops on the front glass pane of the vehicle if there was rain (the witness stated that it was drizlling and the vehicle was kept stationary). 14. But in the cross-examination, the witness admitted that if the wiper of a vehicle was not in operation, nothing could be visible inside the vehicle due to accumulation of rain drops on the front glass pane of the vehicle if there was rain (the witness stated that it was drizlling and the vehicle was kept stationary). 14. In this way it appears that through the evidence on record, the prosecution could establish the following circumstances (i) that the victim was the driver of Taxi No. WMT 42, (ii) that he went away with that taxi after signing garage register in the morning of 2.3.87, (iii) dead body of the victim, Sewdhari Pandit was found lying near premises No. 26, Transport Depot Road by the side of Stitcher Company, (iv) the taxi in question bearing No. WMT 42 was found lying abandoned just opposite to premises No.2, Rangalal Street Police at the time of seizure of such taxi also seized the driving licence of the victim and some other papers, (v) one of the witness is tried to get a lift from Taxi No. WMT 42, after finding the same at about 8.30/9 p.m., which was standing near a godown and at that time the witness found the 3 appellants occupying the rear seat of the taxi and one person was seen lying on the lap of those persons, that is to say, the appellants. 15. Besides the aforesaid circumstances, there is also the confessional statement of one of the appellants of which I have already assigned reason why the same cannot be taken into consideration. The Hon'ble Apex Court in a recent judgement, Kanhai Mishra @ Kanhaiya Miser vs. State of Bihar, reported in J.T. 2001(3) SC 191, has clearly observed where the circumstantial evidence could be the basis of conviction of an accused in the following language: "It is a well established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person’s conviction if it is of such a character that the same is wholly inconsistent with innocence of the accused and is consistent only with his guilt. The incriminating circumstances for being used against the accused must be such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. The incriminating circumstances for being used against the accused must be such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. In a case of circumstantial evidence the whole endeavour and effort of the court should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the accused. If the circumstances proved against the accused in a case are consistent either with the innocence of the accused or with his guilt, he is entitled to the benefit of doubt." 16. In doing so, the Hon'ble Court also placed its reliance on the Constitution Bench judgement of the same court, in the case of M.G. Agarwal vs. State of Maharashtra, AIR 1963 SC 200 , and recent decision of that court in the cases of Ronny Alias Ronald James Alwaris & Ors. vs. State of Maharashtra, JT 1998 (2) SC 375: 1998 (3) SCC 625 and Joseph S/o. Kooueli Poulo vs. State of Kerala, JT 2000 (6) SC 195: 2000 (5) SCC 197 . 17. Considering the whole circumstances as disclosed through the evidence on record and as noted above and in the light of the decision of the Apex Court, I find that the evidence adduced to prove the circumstances as above fall short of establishing a complete chain unerringly pointing to the guilt of the accused. In the absence of the alleged confession by one of the accused, the most important evidence in this respect is the evidence of P.W.17, Ranjit Kumar Chakraborty. The difficulty of accepting the evidence of P.W.17 has already been noted above. But even for the sake of argument if such evidence is taken as a whole then also it cannot be said that the prosecution has completed the chain by connecting the accused with the murder of the victim. Admittedly, the victim was the driver of Taxi No. WMT 42 and P.W.17 saw a person lying on the lap of the appellants who were occupying the rear seat of the taxi. There is no evidence to establish here that the person seen on the lap of the appellants was the victim driver. Admittedly, the victim was the driver of Taxi No. WMT 42 and P.W.17 saw a person lying on the lap of the appellants who were occupying the rear seat of the taxi. There is no evidence to establish here that the person seen on the lap of the appellants was the victim driver. There is no evidence to indicate at what point of time and how the driver who was occupying the driving seat in the front could be seen lying on the lap of some persons occupying the rear seat. That being the position I am constrained to hold that accused persons are entitled to get benefit of doubt, so far, the charge under section 302 read with section 34 I.P.C. is concerned. 18. Before I leave the matter finally I should also point out that the conviction under section 397 I.P.C. cannot be sustained here. This section does not create an offence, but merely regulate the punishment. So, no person can therefore be charged or convicted under the section separately. But this may be read with section 392 I.P.C. or section 395 I.P.C. as the case may be, when in committing such offence, grievous hurt was caused or there was an attempt to commit murder or grievous hurt. The evidence on record, fails to suggest such circumstance. That being the position, although there was on separate sentence awarded for the conviction under section 397 I.P.C., the conviction itself cannot be sustained. 19. In view of the discussion above, it is evident that there is no reason to interfere with the order of conviction under section 392 I.P.C and the sentence passed thereunder, by the learned Additional Sessions Judge in the judgement impugned. But the conviction under section 302 read with section 34 I.P.C. and the sentence thereunder and the conviction under section 395 I.P.C. are hereby set aside. Thus the appeal is allowed in part. Nure Alam Chowdhury, J.: I agree. Appeal partly allowed.