Judgment :- (1) Three criminal appeals bearing No. CRA 430 of 2005 preferred by Uma Kant Prasad, CRA 186 of 2006 preferred by Sanjoy Mali and CRA 233 of 2007 preferred by Audesh Gupta are being disposed of by this common judgment and order as they arise out of judgment and order dated 30th of March, 2005, passed by the learned Additional Sessions Judge, Fast Track Court No. 9 at Bichar Bhawan at Calcutta in Sessions Case No. 51 of 2004 read with Sessions Case No. 78 of 2004 corresponding to Sessions Trial No. 2(6) of 2004 whereby the learned-Judge convicted the three appellants under Section 392 read with Section 397,1.P.C. and sentenced each of them to suffer R.I. of 7 years and to pay a fine of Rs.1,000/-in default to undergo S.I. for 3 months under Section 397,1.P.C. (2) P.W. 3, Smt. Gita Chaudhury, an employee of M/s. S.D. Nahata and Company situated in a room in the second floor of 196, Old China Bazar Street, Kolkata lodged an FIR at 15-15 hours on 16th of October, 2003 with the Hare Street Police Station alleging the following incident:- At about 02-30 p.m. on 16th October, 2003 four young persons entered into her office and closed the door from inside. Three of them entered into the chamber of P.W. 5 Kailash Chaudhury, Accounts Officer and one of them stood near the closed door. They held out threat by pointing fire arms against P.W. 5 and demanded cash. Two of them snatched some 100 rupee notes from left side pocket of his shirt and two finger rings from his right hand. Then they snatched away gold neck-chain and wrist-watch from the possession of P.W. 14 Bajrang Bohora, and then the miscreants neared her and she had to part with her gold ornaments, wrist-watch, neck-chain weighing about 08 gms., mobile phone and then they departed with the booty. (3) The Hare Street Police Station registered a case being Hare Street Police Station Case No. 606 dated 16th October, 2003 against some unknown miscreants under Section 392/397, I.P.C. and under Section 25(1B)(a) and Section 27 of the Arms Act. (3) The Hare Street Police Station registered a case being Hare Street Police Station Case No. 606 dated 16th October, 2003 against some unknown miscreants under Section 392/397, I.P.C. and under Section 25(1B)(a) and Section 27 of the Arms Act. Upon completion of investigation charge sheet was submitted against the three accused persons i.e. Sanjoy Mali, Uma Kant Prasad and Audesh Gupta under Section 392 read with Section 397, I.P.C. (4) The learned trial Court on 3rd September, 2004 framed charges against the aforesaid accused persons under Section 392 read with Section 397, I.P.C. and upon examination of 17 prosecution witnesses and examination of the accused persons under Section 313, Cr.P.C. convicted the three accused persons as noted above under the aforesaid sections of the law and passed the sentence as above. (5) P-W. 1 is Kamal Laskar, a police constable who took photograph of the place of occurrence which is premises No. 196, Old China Bazar Street, Calcutta (Material Exbt. 1,1A, 1B). In the said premises is located the office of M/s. S.D. Nahata and Company of which P.W. 3, P.W. 5 and P.W. 14 were the employees. (6) P.W. 2, Kajal Mondal is a plan maker attached to the Detective Department, Lalbazar and his evidence relates to the topography of the place of occurrence which is not much of importance so far as the charges against the appellants are concerned in view of the place of occurrence being not in dispute. (7) Evidence of P.W. 3, Gita Chaudhury, defacto-compainant is that on 16th October, 2003 when she, P.W. 5 Kailash Chaudhury, accountant of the company and P.W. 14, Mr. Bajrang Bohara were present in the office four parsons entered into the office, two of them being armed with fire arms and knife and another with knife, assaulted P.W. 5 Kailash Chaudhury and took away Rs. 9,000/-from his pocket. Then they entered into the cubicles and approached her and took away her gold neck-chain, one bungle, one gold finger ring, one wrist-watch and her mobile phone. They also snatched away one gold finger ring and silver finger ring from the possession of Kailash Chaudhury, P.W. 5. They also snatched away one gold chain with a locket inscribed Hanumanji from the neck of P.W. 14. They also snatched away one gold finger ring and silver finger ring from the possession of Kailash Chaudhury, P.W. 5. They also snatched away one gold chain with a locket inscribed Hanumanji from the neck of P.W. 14. Now this witness was placed in the T.I. Parade sometime in the month of July, 2004 and she identified Sanjoy Mali and Audesh Gupta but did not identify the other suspect. (8) P.W. 4, Sanat Kumar Das is a neighbour of M/s. S.D. Nahata and Company and after the incident had taken place he came to the office premises of the company and came to learn of the commission of the dacoity. His evidence is of no use. (9) Evidence of P.W. 5, Kailash Chaudhury is relevant and his evidence is that the miscreants being armed with revolver and bhojali entered into the office premises and asked him to part with money. One of them assaulted him on the back side of his head with the butt of the revolver and then the miscreants took away from him Rs. 9,000/-, one gold finger ring fitted with stone, one silver finger ring fitted with stone and one ATM Card of Centurian Bank from his pocket. Also, they took away one gold chain, one mobile phone and other articles from P.W. 3, and also one gold chain from Bajrang Bohara (P.W. 14). It is in his examination-in-chief that during investigation he attended T.I. Parade on 3rd of July, 2004 and at that time he failed to identify the miscreants but in another T.I. Parade he identified two miscreants who are Sanjoy Mali and Uma Kant Prasad. (10) P.W. 6, Ashim Das carries on business under the name and style of M/s. Satkari Das and Company at premises No. 196, Old China Bazar Street and came to the place of occurrence being room No. 23 of the same premises after having heard of the incident. His evidence is of no use so far as the appellants are concerned. His evidence is of no use so far as the appellants are concerned. (11) Evidence of P.W. 7, Susanta Ash, a land broker and a resident of 4/1 Nayan Chand Datta Street, Calcutta - 700 006 is relevant as against the appellant Sanjoy Mali but not against the other two appellants because evidence has it that the appellant Sanjoy Mali made over a gold chain to P.W. 7 and pursuant to the statement of Sanjoy Mali the gold chain was recovered from the possession of P.W. 7 under a seizure list (Exbt. VIII). The appellants Uma Kant Prasad and Audesh Gupta are not affected by the evidence of P.W. 7 and it is not the prosecution case also that any stolen article was recovered from their possession. (12) P.W. 8, Sanjoy Mukherjee was the Metropolitan Magistrate at the material point of time and he conducted T.I. parade on 20th of July, 2004 wherein P.W. 3 and P.W. 5 were called to identify one suspect named Audesh Gupta. P.W." 5 failed to identify the said suspect Audesh Gupta, while P.W. 3 identified the said suspect Audesh Gupta. The appellant Uma Kant Prasad was not placed in the T.I. Parade held on 20th of July, 2004 and therefore the evidence of P.W. 8 does not relate to the appellant Uma Kant Prasad. (13) P.W. 9, Chaudhury Hafajat Karim was another Metropolitan Magistrate who held T.I. Parade inside the Presidency Correctional Home on 12th of July, 2004 in respect of the suspect Audesh Gupta and in that T.I. Parade P.W. 14, Bajrang Bohara identified that suspect. The appellant Uma Kant Prasad was not placed in the T.I. Parade before P.W. 9 on 12th July, 2004. (14) P.W. 10 is one Sanjoy Bafna @ Sanam. He is a reported witness and his evidence is of no use as against any of the appellants. (15) P.W. 11 is Mr. Dilip Kumar Nahata, the proprietor of M/s. S.D. Nahata and Company. After he was informed of the incident by P.W. 3 he came to the place of occurrence and learnt about the incident from P.W. 3. Since he was not an eye-witness to the incident and none of his personal properties were the subject matter of robbery he was not placed in the T.I. Parade. After he was informed of the incident by P.W. 3 he came to the place of occurrence and learnt about the incident from P.W. 3. Since he was not an eye-witness to the incident and none of his personal properties were the subject matter of robbery he was not placed in the T.I. Parade. (16) Evidence of P.W. 12, Subhas Kar is important in this that as a Metropolitan Magistrate he held T.I. parade on 3rd of March, 2004 wherein the appellants Sanjoy Mali @ Babu, and Uma Kant Prasad along with Md. Amin, Kamal-Ghorai @ Bablu were placed before him and P.W. 5 and P.W. 14 identified Sanjoy Mali and Uma Kant Prasad. His report is Exbt. 12. (17) P.W. 13, Ajoy Kumar Dey is a witness to the seizure of gold chain recovered from P.W. 7 pursuant to the statement of Sanjoy Mali. (18) P.W. 14, Bajrang Bohara says that on 16th of October, 2003 at 02-15 p.m. when he came to the office of M/s. S.D. Nahata to gossip with P.W. 3 and P.W. 5 certain unknown persons rushed into the office room and one of them pointed a pistol on his forehead and pushed him towards the corner of the room. Another miscreant held out a pistol towards the occupants of the room, while two other miscreants demanded money. The person who pointed pistol on his forehead and compelled him to stand in corner of the room and struck him with the butt of the pistol twice was Sanjoy Mali. The appellant Uma Kant Prasad according to this witness, searched for money from the drawer and assaulted P.W. 5. Then, the miscreants took away gold chain and other articles from P.W. 3, P.W. 5 and P.W. 14. According to this witness, he identified Sanjoy Mali and Uma Kant Prasad in the T.I. Parade. There has been extensive cross-examination of this witness. (19) P.W. 15, Dipan Jowardar is the first I.O. of the case. He registered the case, took up investigation and examined.certain witnesses including P.W. 5 and P.W. 14. Then the investigation was taken over by the Detective Department of Lalbazar. (20) P.W. 16, Monoj Kumar Das is the second I.O. of the case. His evidence requires some amount of narration. In course of investigation he came to know from his source that Sanjoy Mali and Uma Kant Prasad were involved in this offence. Then the investigation was taken over by the Detective Department of Lalbazar. (20) P.W. 16, Monoj Kumar Das is the second I.O. of the case. His evidence requires some amount of narration. In course of investigation he came to know from his source that Sanjoy Mali and Uma Kant Prasad were involved in this offence. Sanjoy Mali was then in jail in connection with Barabazar P.S. Case No. 264 dated 31st December, 2002, while Uma Kant Prasad was in jail in connection with Amherst Police Station Case No. 172 dated 31st July, 2003. During interrogation their complicity in the offence transpired and they were forwarded to the learned Metropolitan Magistrate, Calcutta and remanded to police custody till 17th February, 2004. While in police custody it revealed that Sanjoy Mali was in possession of a gold neck-chain which he kept in the custody of P.W. 7. Then, pursuant to his statement a neck-chain was recovered from the possession of P.W. 7. Evidence of this witness does not reveal as to what transpired as against the appellant Uma Kant Prasad and Audesh Gupta although they were in police custody. It is not the prosecution case that any of the stolen articles was recovered against Uma Kant Prasad and Audesh Gupta. (21) P.W. 17 is the third I.O. of the case. His evidence is important so far as the appellant Audesh Gupta is concerned. P.W. 17 submitted charge sheet against Uma Kant Prasad and Sanjoy Mali under Section 392/397, I.P.C. on 2nd April, 2004. Then on 9th of June, 2004 which was four months after submission of charge sheet he submitted a prayer before the learned Additional Chief Metropolitan Magistrate for reopening of the case and with the leave of the learned Court Audesh Gupta was taken into custody in connection with this case and on the day of his production in connection with the case he was in judicial custody in connection with Barabazar P.S. Case No. 226 dated 13.11.2002 under Section 392/397, I.P.C. and he submitted a supplementary charge-sheet on 26th of July, 2004 on the basis of identification of him by witnesses in T.I. Parade. (22) Having gained control over the evidence of all the witnesses it appears that evidence of P.W. 3, P.W. 5 and P.W. 14 are relevant only for the purpose of deciding the appeal preferred against the .three appellants. The prosecution case rests on two pillars. (22) Having gained control over the evidence of all the witnesses it appears that evidence of P.W. 3, P.W. 5 and P.W. 14 are relevant only for the purpose of deciding the appeal preferred against the .three appellants. The prosecution case rests on two pillars. The first pillar is identification of the appellants by P.W. 3, P.W. 5 and P.W. 14. P.W. 3, P.W. 5 and P.W. 14 identified Sanjoy Mali. P.W. 3 and P.W. 14 also identified Uma Kant Prasad and P.W. 3 identified Audesh Gupta on different dates. The second pillar of the prosecution case rests on recovery of a gold chain from the possession of P.W. 7 pursuant to the statement of the appellant Sanjoy Mali. Thus, so far as the appellants Audesh Gupta and Uma Kant Prasad are concerned the case against them rests solely on the basis of identification in the T.I. parade. The question is whether on the basis of alleged identification of the three appellants in the T.I. parade they could be rightly convicted by the learned trial Court. Occurrence took place on 16th of October, 2003. Uma Kant Prasad was in terms of evidence of P.W. 6 detained in connection with Amherst Police Station case No. 172 dated 31 st of July, 2003, and at the same time Sanjoy Mali was also detained in connection with Barobazar P.S. Case No. 264 dated 31st of December, 2002. Audesh Gupta was detained in connection with Barobazar P.S. Case No. 226 dated 13-11 -2002 under Section 392/397, I.P.C. Thus, three appellants were produced before the learned Magistrate on different dates on the strength of production warrant when they were detained in judicial custody in connection with three different cases. It further appears that they hail from three different places. All of them were remanded to police custody and 20 days after police custody and then judicial custody had expired, Sanjoy Mali and Uma Kant Prasad were placed in the T.I. Parade on 3rd of March, 2004. The argument of the learned defence Counsel that there has been an inordinate delay of about five months in holding T.I. Parade of Sanjoy Mali and Uma Kant Prasad cannot be brushed aside. The argument of the learned defence Counsel that there has been an inordinate delay of about five months in holding T.I. Parade of Sanjoy Mali and Uma Kant Prasad cannot be brushed aside. Even after Audesh Gupta and Uma Kant Prasad were taken in police custody nothing tangible transpired as against them in the matter of commission of the offence in course of investigation save their identification by P.W. 3, P.W. 5 and P.W. 14. All the three appellants stated before the learned Judge in course of their examination under Section 313, Cr.P.C. that they were shown by the identifying witnesses at Lalbazar on more than one occasions. Mr. Swapan Kumar Mallick, learned Advocate appearing for the State of West Bengal submitted that true it is that it is on the basis of the identification of the appellants in the T.I. Parade that the learned trial Court convicted the appellants but the mere fact that there has been an inordinate delay in holding the T.I. parade cannot be the ground of letting off the offenders. (23) After having heard the submission of the learned Counsels for both the parties it appears to me that there is force in the submission of the learned Counsel for the appellants that Sanjoy Mali, Audesh Gupta and Uma Kant Prasad are residents of three different places. Sanjoy Mali, Uma Kant Prasad, were produced before the learned Chief Metropolitan Magistrate on 9th February, 2004. As said by P.W. 16, Sanjoy was in jail in connection with Barabazar Police Station Case No. 264 dated 31st of December, 2002 and Uma Kant Prasad was in jail in connection with Amherst Police Station Case No. 172 dated 31st of July, 2003. According to the evidence of P.W. 5, he identified Sanjoy and Uma Kant Prasad in jail. This identification took place as per the evidence of P.W. 12 on 3rd of March, 2004 which is nearly five months after the incident. In the said T.I. Parade P.W. 5, Kailash Chaudhury stated that the Uma Kant Prasad was behind the other suspect Sanjoy and both of them demanded money from him. P.W. 14 stated before the learned Magistrate that Uma Kant Prasad was searching for money in the office. Now let us see what their evidence is before the Court. In the said T.I. Parade P.W. 5, Kailash Chaudhury stated that the Uma Kant Prasad was behind the other suspect Sanjoy and both of them demanded money from him. P.W. 14 stated before the learned Magistrate that Uma Kant Prasad was searching for money in the office. Now let us see what their evidence is before the Court. Before the Court, P.W. 3 and P.W. 5 have not said anything as to what role was played by the appellants. If it was possible for P.W. 5 to remember and state before the learned Magistrate about five months after the incident as to what role was played by the appellants then it can be reasonably be expected that when the said witness identified the suspects in Court he would be telling the role played by the appellants and in this respect save and except saying that he identified the appellants in T.I. parade, P.W. 5 did not say anything more. Again, P.W. 14 stated in Court that the appellant assaulted P.W. 5, which is not the evidence of P.W. 5 himself, and again this was not the statement of P.W. 14 before the learned Magistrate in the T.I. parade P.W. 3 was also placed in the T.I. parade on 3rd of March, 2004 and she could identify only Sanjoy Mali saying that the said Sanjoy Mali assaulted P.W. 5 and demanded cash. Two other T.I. parades were held. P.W. 9 conducted T.I. Parade in respect of Audesh Gupta on 2nd of July, 2004 and P.W. 14 identified the said suspect. Then, P.W. 8 conducted T.I. Parade on 20th of July, 2004 in respect of Audesh Gupta wherein P.W. 3, and not P.W. 5, identified the said Audesh Gupta. In the circumstances where T.I. parade was conducted about five months after the incident it is undoubtedly extremely risky that a suspect can be convicted on the basis of such T.I. parade with no further evidence against him. In the circumstances where T.I. parade was conducted about five months after the incident it is undoubtedly extremely risky that a suspect can be convicted on the basis of such T.I. parade with no further evidence against him. The pertinent question is if it is reasonable to say that the three witnesses could find it possible to identify the faces and figure of the appellants particularly when neither in the FIR nor in 161, Cr.P.C. statements of the witnesses they described the physical features of the suspects, and they could not claim that the three suspects had some special features with them that made it possible for them to identify at a glance in the T.I. Parade which was held five months after the incident. (24) Audesh Gupta stands on a greater footing than the appellant Uma Kant Prasad. P.W. 5 did not identify Audesh gupta in the T.I. parade. He was also not identified in the Court by P.W. 5. It was P.W. 3 and P.W. 14 who identified Audesh Gupta. P.W. 14 identified Audesh Gupta on 12th July 2004 and P.W. 5 identified him on 20th July 2004. This identification took place nine months after the incident. Practically this identification has no value in the eye Of law. P.W. 3, P.W. 5 and P.W. 14 did not say in their evidence as to what was the role of Audesh Gupta in the alleged commission of the offence. No recovery was effected against him. Identification of a suspect nine months after the incident can hardly be the basis of conviction and it is doubtful how nine months after the incident the two witnesses could be able to identify one suspect. (25) It was submitted by the learned Advocate for the State that there was not so much of delay in arranging T.I. Parade of the appellants computing the period from the date of production. The question is whether it was possible on the part of the three witnesses to identify Sanjoy Mali and Uma Kant Prasad five months after the incident, and Audesh Gupta nine months after the incident. Is it possible for them to have a vivid memory of the face of the appellants long time after the incident particularly when except identification in the T.I. Parade no recovery was effected against Uma Kant Prasad and Audesh Gupta ? Is it possible for them to have a vivid memory of the face of the appellants long time after the incident particularly when except identification in the T.I. Parade no recovery was effected against Uma Kant Prasad and Audesh Gupta ? (26) In consideration of the above circumstance, it is not prudent to record conviction against the appellants Uma Kant Prasad and Audesh Gupta under Section 392/397, I.P.C. The value of the T.I. parade has become weaken with inordinate delay in holding T.I. parade and there being no other evidence to support identification of P.W. 5 and P.W. 14 in the T.I. Parade it cannot be said that the prosecution case has been adequately proved against the appellants Audesh Gupta and Uma Kant Prasad. (27) So far as the appellant Sanjoy Mali is concerned the prosecution is armed with story of recovery of a gold chain. Occurrence took place on 16th of October, 2003. That was the date when the FIR was lodged. In the FIR P.W. 3 stated that two miscreants snatched away some 100 rupee note from the left side pocket of the shirt of P.W. 5 and two finger rings from his right hand, one gold neck-chain and wrist-watch from P.W. 14 and wrist-watch, one neck-chain and a mobile phone from her. In the FIR there is even description of her finger ring with the letter G embossed thereon. In the FIR there was, however, no description of her gold neck-chain. She described the make of her wristwatch; she described her finger ring ; she described her mobile phone; further she described finger ring of P.W. 5 which was embossed with the word K.S. Now recovery of neck-chain was made from P.W. 7 pursuant to the alleged statement of appellant Sanjoy Mali on 16th of February, 2004. Very surprising is that this gold neck-chain with inscription "S.J". is claimed by P.W. 3 to be hers. If she could be able to state the description of her finger ring whereon there was letter G was embossed (presumably G stands for Gita, the name of P.W. 3), then it is not understood why she did not describe her gold neck-chain which was embossed with the word S.J. The letters S.J cannot be the abbreviation of the name of P.W. 3 or of her husband. It is further peculiar to note that after recovery of this gold neck-chain from Sanjoy Mali there was no T.I. Parade of this article. Even P.W. 3 was not told by the I.O. during investigation that a gold neck-chain was recovered from Sanjoy Mali and she could see if that was t he gold neck-chain of hers. Only a seizure list was produced before the learned Magistrate and the property remained with the I.O. It was only in examination-in-chief for the first time that this gold neck-chain was shown to P.W. 3 who said that it was hers. If the word G could have been found embossed on this neck-chain, or if in the FIR it was described to have been embossed with the words S.J. then it could have been no difficult to believe that the recovered neck-chain belonged to P.W. 3. No other ornaments which were allegedly stolen from the possession of P.W. 3, P.W. 5 and P.W. 4 was recovered from any of the appellants except one gold neck-chain from the appellant Sanjoy Mali and in respect of which there was no description in the FIR, in respect of which there is no evidence of P.W. 5 and P.W. 14 to that effect, but in respect of which it is only P.W. 3 who claims it to be hers for the first time in the Court when it was produced by the I.O. all on a sudden at the time of examination-in-chief. In such circumstances, it is difficult to believe that charge of recovery could be sufficiently brought home against appellant Sanjoy Mali. No prayer was made before the learned Magistrate for holding T.I. Parade of the article so as to find it out whether the said article is identified by P.W. 3 in order that Sanjoy Mali could be legitimately agged with this case. Reference in this connection may be had to the decision in Ashish Batham v. State of Madhya Pradesh, AIR 2002 SC 3206 : 2003 C Cr LR (SC) 147. (28) Accordingly, the prosecution case does not appear to have been proved against three appellants. (29) The appeal is allowed. The conviction and sentence passed against the appellants is set aside. They are not found guilty of offences punishable under Section 392/397, I.P.C. and they are acquitted of the charges and be set at liberty. (28) Accordingly, the prosecution case does not appear to have been proved against three appellants. (29) The appeal is allowed. The conviction and sentence passed against the appellants is set aside. They are not found guilty of offences punishable under Section 392/397, I.P.C. and they are acquitted of the charges and be set at liberty. They may be released forthwith if they are not wanted in connection with any other case.