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2009 DIGILAW 883 (GAU)

Dipak Das v. State of Tripura

2009-12-09

UTPALENDU BIKAS SAHA

body2009
JUDGMENT U.B. Saha, J. 1. Five appellants, Shri Dipak Das, Pradip Das, Kartik Shil, Nimai Sukladas and Shri Balaram Shil were charged under Sections 395/412 of the Indian Penal Code (IPC) and Section 27 of the Arms Act and having been convicted under Section 395, IPC and sentenced to suffer R.I. for ten years with a fine of Rs. 2,000 each, i/d. to suffer further R.I. for two months and further being convicted under Section27 of the Arms Act and sentenced to suffer R.I. for six months by the learned Additional Sessions Judge, Khowai, West Tripura vide his judgment and order dated 20.7.2001 passed in Sessions Trail No. 109(WT/K)/2000 have challenged the aforesaid judgment and order in this appeal. IT was directed by the learned trial court that both the sentences would run concurrently. 2. The facts leading to prosecution of the appellants before the learned trial court, in brief, are as follows: On 3.3.1994 at about 0815 hours, the informant Subrata Sukladas (P.W. 1) lodged a written complaint to Kalyanpur Police Station stating, infer alia, that on previous night, i.e., on 2.3.1994 at about 8.30 p.m. when the informant and his parents were in their northern viti kitchen, three youths, namely. Nil Chand Sarkar, Kartik Shil and Nimai Sukladas being armed with Bhojali entered into their kitchen and demanded salary which the father of the informant, Dhirendra Sukladas, (P.W. 2) had drawn on that date and other valuables. Having frightened with the situation, P.W. 2 Dhirendra Sukladas disclosed that he had kept his salary in the western viti hut. The miscreants then compelled the informant and his father to go to the western viti hut. At that time, his sister, Smt. Sangita Sukladas (P.W. 4) was studying in the western viti hut. Seeing the miscreants in her room, she raised alarm but the miscreants made her to remain mum. The brother of the informant, Subrata Sukladas (P.W.3) was also in the western viti hut who tried to come out through the rear door, but one of the miscreants hit him with a hard substance on his chest. The father of the informant opened the almirah and brought cut a bag containing his salary of Rs. 4,000. Instantaneously, the miscreants snatched away the money bag from the father of the informant and then went away. 3. The father of the informant opened the almirah and brought cut a bag containing his salary of Rs. 4,000. Instantaneously, the miscreants snatched away the money bag from the father of the informant and then went away. 3. On the basis of the said complaint, O/C, Kalyanpur Police Station registered a case being Kalyanpur P.S. Case No. 12 of 1994 under Section 392, IPC and directed for investigation of the case. After completion of investigation, police filed charge sheet against the appellants herein along with one Nil Chand Sarkar and the case, being exclusively triable by the Court of Sessions, was committed to the court of learned Sessions Judge after adjourning the case sine die against the accused Nil Chand Sarkar as he was not available before the court and the learned Sessions Judge after registration of the case transferred the same to the learned Additional Sessions Judge, Khowai, West Tripura for trial. During trial, accused-appellant Kartik, Nimai and N. Chand (against whom the case was sine die adjourned) made confessional statement under Section 164 of the Code of Criminal Procedure, 1973 before the Magistrate. It is to be noted here that during investigation police also produced two other accused namely, Ranjit Tati and Rana Pati Debnath on 5.3.1994 and the learned Sub-Divisional Judicial Magistrate, Khowai, West Tripura released them on the very day. The earned trial court framed charges against the five convict-appellants under Sections 395/412, IPC read with Section 27of the Arms Act. 4. lb bring home the charges, the prosecution examined as many as twelve witnesses, but the convict-appellants none in support of their defence. The convict-appellants were examined under Section 313, Cr.PC and their case was of pure denial. 5. At the conclusion of the trial, the learned trial court held that the appellants herein are liable to be convicted for commission of the offence punishable under Section 395, IPC and Section 27 of the Arms Act and accordingly awarded the sentence to all the five accused-appellants as stated supra. 6. To arrive at the aforesaid conclusion that an incident of dacoity was occurred in the house of Dhirendra Sukladns (P.W.2) and the same was committed by the accused-appellants, the learned trial court mainly relied on the deposition of P.Ws.1, 2, 3, 4 and 5 who are the inmates and P.Ws.6 and 7 who are the neighbours. 7. 6. To arrive at the aforesaid conclusion that an incident of dacoity was occurred in the house of Dhirendra Sukladns (P.W.2) and the same was committed by the accused-appellants, the learned trial court mainly relied on the deposition of P.Ws.1, 2, 3, 4 and 5 who are the inmates and P.Ws.6 and 7 who are the neighbours. 7. P.W. 1 Sri Subrata Sukladas is the informant, P.W. 2 Dhirendra Ch. Sukladas and P.W.5 Smt. Kalpana Sukladas are the father and mother of P.W.1, P.W.3 Debabrata Sukladas and P.W.4 Smt. Sangeeta Sukladas are the brother and sister of the informant (P.W.1). P.W.6 Gopal Ch. Das and P.W.7 Khokan Ch. Das are the neighbours. Out of them, P.W.1, 2 and 4 are the eye witnesses of the occurrence, P.Ws.6 and 7 are the persons who rushed to the house of the informant on being hoard hue and cry from the house of the informant and they reached there after departure of the miscreants. P.W.6 stated in his deposition that the father of the informant told him that some miscreants committed dacoity in their house and looted some money from his house and the informant, his son, could identify some of the miscreants. Though the informant disclosed the names of the miscreants to him, but he had forgotten their names. But in cross, this witness told that the informant disclosed the name of Nil Chand Sarkar, Kartik Shil and Nimai Sukladas as members of the gang of miscreants. P.W.7 stated in his deposition that when he arrived at the house of the informant, he came to learn from the house inmates that miscreants looted Rs. 4,000 from their house. The informant could identify the miscreant and disclosed the names of the miscreants as Kartik Shil, Nimai Sukladas and another Sukladas. P.W.11 Sri Binoy Bhusan Bhattacharjee, the then SDJM, Khowai recorded the confessional statement of Nii Chand Sarkar, Nimai Sukladas and Kartik Shil. He stated that he recorded the confessional statement when he was satisfied that the accused persons were willing to make confessional statement without being influenced by others. P.W.12 Priyatosh Das is the investigating officer who arrested the accused Nil Chand Sarkar, Nimai Sukladas and Kartik Shil. He stated that he recorded the confessional statement when he was satisfied that the accused persons were willing to make confessional statement without being influenced by others. P.W.12 Priyatosh Das is the investigating officer who arrested the accused Nil Chand Sarkar, Nimai Sukladas and Kartik Shil. He stated in his deposition that the accused confessed their guilt to him and also disclosed the names of Dipak Das, Pradip Das and Balaram Shil as accomplices in commission of dacoity in the house of Dhirendra Sukladas, P.W.2. This witness also stated that as per confessional statement of the accused Kartik Shil and as shown by him, three country made guns were also recovered under a Karai tree at Kalyanpur, which were told to have been used by them. This witness also went on to state that he recovered Rs. 545 from the accused Nimai Sukladas and Rs. 250 from the accused Nil Chand Sarkar though P.W.1, the informant in his cross-examination stated that the Gaon Pradhan Nitai Shil managed to recover Rs. 700 from the accused persons and thereafter he handed over the same to them. But this matter was not informed to the police by him and the prosecution chose not to examine the said Gaon Pradhan Nitai Shil as a prosecution witness. 8. Heard Mr. S. Chakraborty, learned Counsel for the appellants Nos. 1, 2 and 5 and Mr. Somik Deb, learned Counsel for the appellants Nos. 3 and 4. Also Mr. A. Ghosh, learned Additional public Prosecutor appearing for the respondent State. 9. Mr. Chakraborty, learned Counsel for the appellant Nos. 1, 2, and 5 would contend that the aforesaid appellants have been falsely entangled in the case as none of the witnesses could identify them as miscreants either at the time of commission of the offence or during trial. He contended that even the informant (P.W.1) himself though told that he could identify three miscreants, but could not disclose their names except the name of Kartik arid as such disclosing the names of Nimai and Nil Chand as miscreants in the FIR was nothing, but an afterthought. P.W. 1 in his cross stated that accused Kartik Shil was regularly visiting their house and used to take coaching from his younger brother, but his (P.W.1) father, Dhirendra Ch. P.W. 1 in his cross stated that accused Kartik Shil was regularly visiting their house and used to take coaching from his younger brother, but his (P.W.1) father, Dhirendra Ch. Sukla Das (P.W.2) identified accused Dipak as Kartik and Kartik as Nimai in the dock during trial, which goes to show that the accused persons were not known to them at all and as such the evidence of the witnesses suffers from material contradictions and on that count alone, the accused-appellants are liable to be acquitted from the charges levelled against them. 10. Learned Counsel further contended that the accused-appellant Dipak, Pradip and Balaram cannot be convicted on the basis of the purported confessional statement of the accused-appellant Kartik and Nimai and the said statement was not recorded by the learned Magistrate in accordance with law as would be evident from the order of the learned SDJM (PW11) dated 5.3.1994. According to him, the learned Magistrate before recording their confessional statement did not assure them that if they did not make confessional statement, they would not be handed over to the police and as such out of fear, they made the confessional statement. Learned Counsel submitted that the accused-appellants were also hot provided with proper reflection before recording their confessional statement and as such, the confessional statement was not voluntary one. His further contention was that confession of a co-accused is not a substantive evidence and the some cannot be the foundation of conviction. It can only be used for convicting a person with the support of other corroborative evidence. In support of his aforesaid contention, he relied on a constitutional bench decision of the Apex Court in the case of Haricharan Kurmi v. State of Bihar air 1964 SC 1184 , particularly paras 12 and 16 wherein the Apex Court in para 12 noted, inter alia, "As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against co-accused person. In dealing with a criminal case, where the prosecution relied upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidenced appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerburty ILR 38 Cal. 559 at p. 588 a confession can only be used to lend assurance to other evidence against a co-accused...as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. (emphasis supplied) 11. In para 16, the Apex Court further noted, inter alia, "it has been a recognized principle of the administration of criminal law in this country for over half a century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the court to render the verdict that the charge is not proved against him, and so, he entitled to the benefit of doubt. 12. Finally, Mr. Chakraborty centered his argument contending that none of the prosecution witnesses disclosed the names of accused-appellant Dipak, Pradip and Balaram. Only the accomplice co-accused Kartik, Nimai and Nilchand in their purported confessional statement recorded under Section 164, Cr.PC mentioned their names and according to the learned Counsel in absence of any corroboration the aforesaid accused-appellants cannot be convicted by a court of law in view of the decision of the Apex Court as stated supra. Mr. Chakraborty also relied on the decision of the Apex Court in Bishnu Prasad Sinha and Anr. v. State of Assam (2007) 11 SCC 467 , particularly paras 42 to 47, wherein the Apex Court in para 42 noted, thus- 42. The expression "the court may take into consideration such confession" is significant. It signifies that such confession by the maker as against the co-accused himself should be treated as a piece of corroborative evidence. In the absence of any substantive evidence, no judgment of conviction can be recorded only on the basis of confession of a co-accused, be it extra-judicial confession or a judicial confession and least of all on the basis of retracted confession. 13. Taking note of its earlier decision in the cases of State of M.P. v. Paltan Mallah (2005) 3 SCC 169 , the Apex Court in para 43 of Bishnu Prasad Sinha (supra) noted- Under Section 30 of the Evidence Act, the extra-judicial confession made by a co-accused could be admitted in evidence only as a corroborative piece of evidence. In the absence of any substantive evidence against these accused persons, the extra-judicial confession allegedly made by the ninth accused loses its significance and there cannot be any conviction based on such extra-judicial confession. 14. In the absence of any substantive evidence against these accused persons, the extra-judicial confession allegedly made by the ninth accused loses its significance and there cannot be any conviction based on such extra-judicial confession. 14. Taking note of its earlier decision in the case of Sidharth v. State of Bihar (2005) 12 SCC 545, the Apex Court in para 44 of Bishnu Prasad Sinha (supra) noted, inter alia, "It is true that the confession made by a co-accused shall not be the sole basis for a conviction". 15. Mr. Somik Deb, learned Counsel appearing for the accused-appellants Kartik and Nimai while attacking the confessional statement, particularly Exbts. 5 and 6 contended that those statements are exculpatory in nature and not inculpatory one as from the those confessional statements of accused-appellants Nimai and Kartik it would be evident that they tried to dissociated themselves from the other co-accused, but they were forced to remain with the other co-accused on the point of dagger with a threat of killing and even on that threat also they did not participate in the alleged crime. Learned Counsel contended that accused Nimai was in the courtyard and accused Kartik was on the road and as such they committed no offence of dacoity. He submitted that even if the court considers that they committed the offence of dacoity as alleged, that they committed under threat of instant death and as such they will be protected from punishment in view of the provisions of Section94, IPC. 16. Mr. Deb also urged that the accused-appellants were not provided with any lawyer before recording their alleged confessional statement, which caused serious miscarriage of justice and as such the alleged confessional statement were totally under pressure, threat and promise given by the police. He further urged that the learned trial court failed to consider the statement of accused-appellant Kartik and Nimai recorded under Section 313, Cr.PC wherein they specifically stated that they made the confessional statement before PW 11 out of fear. He further urged that the learned trial court failed to consider the statement of accused-appellant Kartik and Nimai recorded under Section 313, Cr.PC wherein they specifically stated that they made the confessional statement before PW 11 out of fear. He contended that the charges under Sections 395 and 412, IPC cannot be framed against an accused simultaneously and at the same time, charge under Section 27 of the Arms Act cannot be framed against an accused as there is no such section in the Arms Act which should be recorded as Section 27(1), 27(2) and 27(3) as Section 27(1) is for contravention of Section 5, Section 27(2) is for contravention of Section 7 and Section 27(3) is for contravention of Section 7 which are distinctly punishable and prescribed for three offences. So the charges framed by the learned trial court are against the law and the trial held thereupon was highly illegal. He contended that though allegedly on the basis of the confessional statement of accused Kartik alleged arms were recovered, but neither those arms were used by him nor was found in his possession. Hence, Section 25 of the Arms Act is not attracted. He further contended that the gun recovered was admittedly not used in the alleged offence. Hence, Section 27of the Arms Act is also not attracted. So far as the seizure of gun is concerned, the learned Counsel for the appellants referring to the evidence of the prosecution witnesses submits that Kartik Shil was not armed with guns. Therefore, the facts that Kartik Shil led the police officer and had shown three guns used at the time of commission of dacoity which were found under a tree at Kalyanpur Tea Estate was a demonstration one by the police. As such, the learned trial court has erred both in law and facts as well as failed to appreciate the evidence on record and accordingly arrived at a wrong conclusion and committed a serious error in convicting the accused appellants which is liable to be set aside. 17. As such, the learned trial court has erred both in law and facts as well as failed to appreciate the evidence on record and accordingly arrived at a wrong conclusion and committed a serious error in convicting the accused appellants which is liable to be set aside. 17. Learned Counsel again pointed out that though PW1 and PW2 stated in their deposition that Nilchand, Kartik end Nimai trespassed into their room being armed with bhojali, but the said bhojali was neither seized nor produced by the police before the learned trial court and non-production of said bhojali also creates doubt regarding the presence and participation of aforesaid two accuse4 persons in the alleged dacoity, he also pointed out that though P.W.2, Dhirendra Ch. Sukladas, a hostile witness of prosecution in his cross by the prosecution stated that he stated to I/O that while he was gossiping with his son Subrata in the kitchen suddenly Nil Chand Sarkar, Kartik Shil and Nepal Das trespassed into their house and though their faces were somewhat covered but he could identify them by the light of the room, but in his cross-examination, this hostile witness stated that as the face of the accused persons were covered, he could not identify them properly and he stated to his family members including P.W.1 that he could not identify any miscreants. Therefore, according to the learned Counsel, the statement of P.W.2 is in no way help the prosecution case. 18. Mr. Deb argued on supposition that if the court comes to a conclusion that accused-appellants Dipak, Pradip and Balaram were in no way involved in the alleged crime and they would get acquittal on that ground that they were not implicated by any of the prosecution witnesses except the confessional statement of the accused Nimai, Kartik and Nilchand, then these two accused-appellants cannot be convicted under Section 395, IPC. in support of his aforesaid contention, he referred to the decision of the Apex Court in the case of Ram Shankar Singh and Ors. v. State of Uttar Pradesh AIR 1956 SC 441 . He also referred to the decision of the Apex Court in Ram Lakhan v. State of Uttar Pradesh (1983) 2 SCC 65 . 19. Mr. in support of his aforesaid contention, he referred to the decision of the Apex Court in the case of Ram Shankar Singh and Ors. v. State of Uttar Pradesh AIR 1956 SC 441 . He also referred to the decision of the Apex Court in Ram Lakhan v. State of Uttar Pradesh (1983) 2 SCC 65 . 19. Mr. Deb contended, that the learned Magistrate as well as the learned trial court while recording statement of the accused-appellants under Sections 164 and 313, Cr.PC respectively did not record the age of the accused-appellants. He submitted that accused-appellant Kartik was below 21 years at the time of commission of the alleged offence. He produced the copies of birth certificate as well as the Madhyamik Admit card of accused-appellant Kartik showing his date of birth as on 12.6.1974, which supports the aforesaid contention of the learned Counsel. Therefore, according to him, even if this Court fines him guilty under Section 392, IPC then also he is entitled to get the benefit of probation under Section 360 of Cr.PC as well as Section 4 of the Probation of Offenders Act 1958 as he was a student at the relevant time and if it is assumed that he committed the alleged offence, that was his first offence and in such a situation the learned trial court might release him on probation in exercising its power under Section 360, Cr.PC and Section 4 of the Probation of Offenders Act, 1958. 20. In support of his aforesaid contention, Mr. Deb relied on a judgment of the Apex Court in State of Haryana v. Prem Chand AIR 1997 SCC (Crl.) 1176 wherein the Apex Court in an appeal preferred by the State to deny to the respondent therein the benefit of Section 360, Cr.PC or the of Section 4 of the Probation of Offenders Act, 1958 upheld the decision of the Sessions Court. In that case the Court of Sessions holding the accused guilty for the offence under Sections 376/511, IPC viewed that since the accused-respondent was less than 21 years of age, the benefit of probation could not be denied to him, when he was not a previous convict. The court then ordered his release on probation. Against that the State moved the High Court and the High Court upheld the decision of the Sessions Court and against that the State went to the Apex Court. The court then ordered his release on probation. Against that the State moved the High Court and the High Court upheld the decision of the Sessions Court and against that the State went to the Apex Court. The Apex Court considering the facts and circumstances of that case held "The Court of Session, therefore, was not wrong in extending to him such benefit and the High Court committed no error in declining to interfere therein. The appeal, thus, has no merit and is, therefore, dismissed." 21. Per contra, Mr. Ghosh, learned Addl. Public Prosecutor while supporting the impugned judgment and order of the learned trial court contended that the impugned judgment is not wholly based on confessional statement of the accused-appellants Kartik, Nimai and the absconded accused Nilchand, rather it is based on the evidence of P.W.1, whose evidence is corroborated by P.Ws. 6 and 7. In support of his aforesaid contention he referred to para 12 of the impugned judgment wherein the learned trial court noted as follows: 12. From the evidence on record as discussed above I find that accused persons, namely - Kartik Shil Nimai Sukladas and Nil Chand Sarkar were identified by PW1 Subrata Sukladas and P.W.2 Dhirendra Sukladas at the time of commission of dacoity in their house. Just after the occurrence P.W.1 disclosed the name of said miscreants to P.W.3, P.W.6 and P.W.7. I/O recovered a portion of the cash from the possession of Nil Chand Sarkar end Nimai Sukladas when they were arrested by him and the said recovered amount were identified by P.W.1 as the looted amount of his house. Apart from that the said accused persons have made confessional statement admitting their involvement in the commission of dacoity in the house of the informant. Accused Kartik Shil also led the pence officer and has shown three guns used at the time of commission of dacoity which was concealed under a tree at Kalyanpur Tea Estate. 22. He further contended that the confessional statement of the accused Kartik, Nimai and Nilchand are not exculpatory statements, rather these are inculpatory in nature and the said statements were corroborated by P.Ws. 1, 2, 6 and 7 and the same can be used against the maker of the statement only. 22. He further contended that the confessional statement of the accused Kartik, Nimai and Nilchand are not exculpatory statements, rather these are inculpatory in nature and the said statements were corroborated by P.Ws. 1, 2, 6 and 7 and the same can be used against the maker of the statement only. It cannot be used against other co-accused as none of the prosecution witnesses corroborated the confessional statement so far the participation of the other co-accused in the alleged commission of offence is concerned. He fairly conceded that as there is no evidence against the accused-appellant Dipak, Pradip and Balaram except the confessional statement of accomplices co-accused, they are entitled to be acquitted. He contended that the accused-appellant Kartik and Nimai are not entitled to the benefit of Section 94, IPC as the alleged threat of the co-accused was not of instant killing or death of the maker of the confessional statement and more so, it is evident from the statement itself that they joined with the co-accused knowing their character. He finally submitted that why P.W.1 informant should be disbelieved when the accused-appellants did not plead any enmity either against them or against their family members. 23. As the whole prosecution case is mainly based on evidence of P.Ws.1, 2, 3, 4, 5, 6 and 7 as stated earlier, we may now before addressing on submission of the learned Counsel for the parties turn out attention to the evidence of the aforesaid prosecution witnesses. 24. P.W.2, Dhirendra Ch. Sukladas, father of the informant (P.W.1) and P.W.6, Gopal Ch. Das were declared hostile by the prosecution. P.W.2 in his cross-examination by the prosecution stated that he stated to I/O. that while he was gossiping with his son Subrata in the kitchen suddenly Nil Chand Sarkar, Kartik Shil and Nepal Das trespassed into their house and though their faces were somehow covered but he could identity them by the light of the room. He also stated that the miscreants were armed with dagger and other weapon. But in his cross-examination by defence he stated that as the face of the accused persons were covered, he could not identify them properly and he stated to his family members including P.W.1 that he could not identify any miscreants. 25. He also stated that the miscreants were armed with dagger and other weapon. But in his cross-examination by defence he stated that as the face of the accused persons were covered, he could not identify them properly and he stated to his family members including P.W.1 that he could not identify any miscreants. 25. P.W.6 Gopal in his cross-examination by the prosecution stated, inter alia, that he stated to I/O that Subrata told him that he (Subrata) could identify some of the miscreants and disclosed the names of Nil Chand Sarkar, Kartik Shil and Nimai Sukladas to him as the members of the miscreants. But in his cross-examination by the defence, this hostile witness stated that he went to the house of Subrata (P.W.1) when he heard the hue and cry from their house. It would be in between 8-30 to 9 p.m. He heard everything from the father of Subrata (P.W.2). But fact remains that neither P.W.1 nor P.W.2 stated in their deposition that they disclosed the names of accused-appellants Kartik, Nimai or Nilchand to this witness or P.W.7, hence, it would not be safe to believe the evidence of this witness in absence of any corroboration either from P.W.1 or P.W.2. 26. P.W.3, Debabrata Sukladas, brother of the informant P.W.1 in his deposition stated that at the time of incident he was taking rest by lying on the cot in their southern viti hut and at that time somebody bolted the main door of the room from outside. He thought that his elder brother (P.W.1) might have bolted the door. He addressing his brother told that he was inside the room so no need to bolt the door from outside, but he did not get any response. After a while he tried to come out from the room through the rear door. But as soon as he opened the door somebody hit him on his chest with a hard substance and threatened him to face dire consequences if he came out from the room. He hereafter raised alarm and hearing his alarm some villagers came to their house. Thereafter, he came to learn from his father (P.W.2) and brother (P.W.1) that Kartik Shil, Nilchand Sarkar and Nimai Sukladas committed dacoity in their house and they snatched away Rs. 4,000 from his father (P.W.2). He hereafter raised alarm and hearing his alarm some villagers came to their house. Thereafter, he came to learn from his father (P.W.2) and brother (P.W.1) that Kartik Shil, Nilchand Sarkar and Nimai Sukladas committed dacoity in their house and they snatched away Rs. 4,000 from his father (P.W.2). But P.Ws.1 and 2 nowhere stated in their deposition that they disclosed the names of the aforesaid three persons to this witness. Therefore, it can be easily presumed that P.W.3 is also not an eye witness of the alleged incident and story of hearing the names of Kartik, Nimai and Nil Chand is after thought. 27. The evidence of P.W.4, Smt. Sangita Sukladas would in no way help the prosecution as she in her deposition did not mention name of any of the miscreants, i.e., charge sheeted accused. 28. P.W.5, Smt. Kalpana Sukladas, mother of P.W.1 in her chief stated that on the date of alleged occurrence at 8.30 p.m. she was cooking in the northern viti hut. Her husband and son Subrata were gossiping in the said room. At that time three miscreants made their entry in the said room being armed with bhojali and other weapons. They at the point of bhojali asked her husband and son to hand over all the valuables to them. The said miscreants took her husband and son to the western viti hut where her daughter Sangita (P.W.4) was studying. Her husband opened the almirah and brought out money bag containing money. As soon as her husband brought out the money bag the miscreants snatched away the same from him and fled away. They raised alarm after the departure of the miscreants and hearing their cry some villagers came to their house. Her husband and son could identify the miscreants. The miscreants looted Rs. 4,000 in cash from their house. In her cross, this witness stated that there was a lantern infront of the southern viti hut and the miscreants damaged it at the time of their departure. She saw the miscreants through the light of that lantern. But police did not seize that lantern and non-seizure of lantern, i.e., the source of identification of the miscreants by the investigating agency case creates a doubt regarding the identification of the accused-appellants by the prosecution witnesses and they ore entitled to get the benefit of reasonable doubt. She saw the miscreants through the light of that lantern. But police did not seize that lantern and non-seizure of lantern, i.e., the source of identification of the miscreants by the investigating agency case creates a doubt regarding the identification of the accused-appellants by the prosecution witnesses and they ore entitled to get the benefit of reasonable doubt. Therefore, her statement also in no way support the case of the prosecution so far the identification of accused-appellant Kartik, Nimai and absconded accused Nilchand is concerned. 29. In Laba Chandra Dutta and Ors. v. State of Tripura 2000 Crl. LJ 1523 a Division Bench of this Court disbelieved the story of identification of the appellants of that case by P.Ws. 21 and 22 even when the investigation agency seized a flat lamp made of coconut oil in place of Mashal. In the instant case, admittedly police did not seize any lantern. 30. In Promode Das and Ors. v. State of Tripura 2009 (2) GLT 90, a Division Bench of this Court also while discussing regarding the identification of the accused with the help of kupi lamp, which was seized by the investigating agency noted as follows: According to us, the said findings of the trial court so far identification of the accused persons are concerned with the, help of kupi lamp is not acceptable as RW. 11 specifically stated that jhap door of the hut of the deceased was broken open and kupi lamp which was lighted by her mother was put off on the fall of the jhap door and in the meantime, her father fled to Thakur garh. No where they stated that they identified the accused persons with the help of kupi lamp. Therefore, the findings of the learned trial court so far the identification of the accused with the help of kupi lamp is not acceptable and more so non-seizure of kupi lamp also creates doubt about the existence of the said lamp inside the hut of the deceased at the relevant time. 31. P.W.7; Khokan Ch. Das, a neighbour of P.W.1 in his deposition stated that he went to the house of P.W.1 informant after hearing hue and cry and he came to learn from the house inmates that miscreants looted Rs. 4,000 from their house. 31. P.W.7; Khokan Ch. Das, a neighbour of P.W.1 in his deposition stated that he went to the house of P.W.1 informant after hearing hue and cry and he came to learn from the house inmates that miscreants looted Rs. 4,000 from their house. He also stated that P.W.1 told him that he could identify three miscreants namely, Kartik Shil, Nimai Sukladas and another Sukladas. In cross, this witness stated that when Subrata (P.W.1) disclosed the names of miscreants to him, there was none except him. But P.W.1 nowhere in his statement deposed that he disclosed the names of the miscreants to this witness. Therefore, statement of this witness also cannot be believed. 32. Now remains only P.W.1 claimed to be an eye witness, on the basis of whose statement and the confessional statement of accused-appellant Nimai and Kartik, the learned trial court convicted and sentenced the accused-appellants. This witness in his deposition stated that on 2.3.1994 at about 8.30 p.m. while his mother was cooking in the northern viti kitchen, he and his father (P.W.2) were gossiping in the same room and at that time suddenly three miscreants namely Nilchand Sarkar, Kartik Shil and Nimai Sukladas being armed with bhojali trespassed into the room and at the point of bhojali they asked him and his father to hand over the salary of his father including other valuable belongings. They became frightened. His father told the miscreants that he had kept the amount of salary in the western viti hut. Then the miscreants took them in the western viti hut. His father opened the almirah and brought out the money bag which contained Rs. 4,000. As soon as his father brought out the money bag, the miscreants snatched it out and left the place. Before their departure, the miscreants threatened them for dire consequences if they raised any alarm. After the departure of the miscreants they raised alarm and hearing their alarm villagers came to their house. On the following morning he lodged written ejahar in the Kalyanpur Police Station and he identified his ejahar as Exbt.P1/1. This witness further stated that he identified accused Kartik Shil in the dock and other two accused persons Nemai Sukladas and Nilchand Sarkar were not before the court. In his cross, this witness stated that Gaon Pradhan Nitai Shil managed to recover Rs. This witness further stated that he identified accused Kartik Shil in the dock and other two accused persons Nemai Sukladas and Nilchand Sarkar were not before the court. In his cross, this witness stated that Gaon Pradhan Nitai Shil managed to recover Rs. 700 from the accused persons and thereafter he had handed over the same to them. But the said fact was not informed to the police by him. He also stated that one Manik Das informed the police. In his cross, this witness further stated that accused Kartik regularly visited their house and he used to take coaching from his (P.W.1) younger brother. He stated that the accused persons were known to him but on the date of incident he knew the name of Kartik only. Other two accused persons were known to him but he did not know their names. 33. As the prosecution case is not only based on the evidence of P.W.1, but also on confessional statement of accused Kartik, Nimai and absconded accused Nilchand, therefore, we have to consider the manner in which the confessional statement was made by the aforesaid accused. It is the admitted fact that those three accused were brought to the court of learned SDJM, Khowai (P.W.11) on 4.3.1994 in connection with Kalyanpur PS Case No. 12 of 1994 for getting their statement recorded under Section 164, Cr.PC and on that date the learned Magistrate asked those accused persons whether they were inclined to make any confessional statement or not. As the answer was in affirmative, he (P.W.11) sent them to jail for reflection of their mind with a direction to the Sub-Jailor to keep them in segregation and to produce them again before him on the following day and accordingly they were produced before P.W.11 on 5.3.1994 and P.W.11 recorded their statement after cautioning them that they were not bound to make any confessional statement and that if they made any such statement that might be used against them in the trial. Before recording their statement, P.W.11 also ascertained from them whether they were influenced by anybody to make the confessional statement and as the answer was negative he again allowed them for further reflection of their mind. Before recording their statement, P.W.11 also ascertained from them whether they were influenced by anybody to make the confessional statement and as the answer was negative he again allowed them for further reflection of their mind. The relevant portions of the confessional statement of the aforesaid three accused are reproduced herein below one after another: Accused Nimai Sukla Das While I had gone for marketing at Baganbazar on last Wednesday after petty long time since Dusk then I happened to meet with Kartik Shil of our village there. He made marketing (Purchased articles). I was also running business. Dipak Dos, Pradip Das and Balaram of Dwarikapur came and asked me to came out of the market to hear which they have supposed to toll mo. Then I went out side of the market accompanying them and they kept me standing there by deploying Balaram and then Dipal and Pradip came again to the market and after a short while I found that they came with Kartik Shil and Nilchand Sarkar and told me to go to a place with them. We all the three persons told him not to go. Then they had threatened us by showing Dagger and told that if we do not go with them they will kill, then we had gone with them. They on going Anandatilla situated near to their houses had taken out three wooden made Guns from a Jungle and three of them took Guns and they had gone to a nearby house. Kartik stood cut side of the house and I along with Nilchand had gone till the courtyard. Pradip and other had entered inside the room and brought money. Thereafter, we came away therefrom. On coming to a Tea-Garden they have kept concealed the guns beneath a tree. They gave me Rs. 400 (Rupees four hundred) and gave Rs. 400 (Rupees four hundred) to Nilchand. Kartik Shil did not take money. Thereafter we had gone to our houses. On the following day people sent message for us and as we have gone there on getting message then they (People) have assaulted us and handed over us to the police. 400 (Rupees four hundred) and gave Rs. 400 (Rupees four hundred) to Nilchand. Kartik Shil did not take money. Thereafter we had gone to our houses. On the following day people sent message for us and as we have gone there on getting message then they (People) have assaulted us and handed over us to the police. Accused Kartik Shil I hod gone to Began Bazar at dusk on 1st Wednesday dated 2.3.1994 A.D. I happened to meet with Nilchand Sarkar of our village in the market at about 7 O'clock evening and while both of us were talking then two boys of village Dwarikapur, namely, Dipak Das and Pradip Das came forward to us and told us that have a discussion with us and asked to going outside of the market. While I raised objection then they told if we do not go with them we will face danger. While we came outside accompanying them then we found that Nimai and Balaram were standing in a certain place. Then they told us to go to a place with them. Which as we the two persons and Nimai had raised objection then they threatened us on showing Dagger that if we do not go with them they will kill us. Out, I had requested them saying my Madhyamnik examination is knocking at the door. I have to study. As they were posing threat I had to go with them on reaching at Anandatilla they had taken out there Gada Guns from a Jungle and Pradip, Dipak and Balaram took up the Guns and they on taking us had gone to the residence of Debu Master. I told again that I shall not go, then they told me to keep standing on the road till their return and not to abscond otherwise they will kill me. I was standing there. After a short while they came out from the inside and they on taking us had gone to a Tea Garden and they had kept those guns concealed beneath a tree. They took money by distribution. They gave Rs. 400 each to Nimai and Nilchand. I have not taken any money. Thereafter we came away therefrom. I was standing there. After a short while they came out from the inside and they on taking us had gone to a Tea Garden and they had kept those guns concealed beneath a tree. They took money by distribution. They gave Rs. 400 each to Nimai and Nilchand. I have not taken any money. Thereafter we came away therefrom. On the following day people of the village had taken me to a house by sending message to go there and being asked by them I narrated the entire incident, then they had also assaulted me there then they had also brought Nimai and Nilmani and they had also assaulted them. Thereafter they had handed over us to the police and I narrated everything. Then the Daragababu (i.e., police officer) on taking me had gone to the Tea Garden and I had shown the place whore they had kept the Guns concealed then he the (Police Officer) had recovered all these guns in presence of other people. Accused Nilchand Sarkar I had gone to Bagan Bazar for marketing after dusk on last Wednesday and I happened to meet with Kartick Shil of our village in the market. I while was talking with him then Dipak Das and Pradip Das of Dwarikapur came forward to us and told they have a discussion with us and told us to go out side of the market. While we came out side of the market we found that Balaram and Nimai Das were standing in a place, then they told both of us and Nimai to go with them while we told them not to go with them then they had threatened us on showing a Dagger and told us that if do not go with them they will kill us. Then we had gone with them out of fear. On way to the house of Debu Master near Anandatilla by taking us they had taken out three gada Guns from a Jungle, Kartick did not went to proceed further on the road then they on keeping him in standing out side had entered into the house and on keeping me and Nimai in standing on the courtyard they had entered into the room and talked something and gave money. Thereafter, they on taking us had entered into a Tea-Garden and kept these guns under a Tree and took money amongst them by way of distribution. They gave me Rs. 400 (Rupees four hundred) and gave Rs. 400 (Rupees four hundred) to Nimai, Kartik did not give any money. On the following day, while the village people caught hold of us then we had stated which was happened, thereafter they had handed over us to the police. This is my statement. 34. As none of the prosecution witnesses implicated accused Dipak, Pradip and Balaram, appellant Nos. 1, 2 and 5 herein regarding their participation in the alleged incident of dacoity on 2.3.1994, there remains only the confessional statement of the co-accused. It is the settled position of law that a confession of a co-accused is not a substantive evidence and the same cannot be the foundation of conviction. It can only be used for convicting a person with the support of other corroborative evidences. It is also settled that in ordinary sense the confession is not evidence in view of Section 3of Evidence Act. In our society tendency to include innocence persons with the guilty cannot be overruled and, therefore, before passing an order of conviction, it is the duty of the court to insist on independent evidence which in some measures implicates the accused persons. 35. In view of Haricharan Kurmi (supra) the contention of a co-accused person cannot be treated as a substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence and also in criminal trial there is no scope for applying the principle of moral conviction or grave suspicion. In the instant case, though the co-accused in their confessional statement tried to implicate accused-appellants Dipak, Pradip and Balaram, but all the some time in their statement they denied their participation in the alleged crime on their own and they stated that they were compelled to accompany the aforesaid accused persons under threat of instant killing. Therefore, the said statement cannot be said to be an inculpatory statement, rather an exculpatory one. Therefore, the said statement cannot be said to be an inculpatory statement, rather an exculpatory one. A confessional statement whether it is inculpatory or exculpatory in nature, is weak evidence and on the basis of the said weak evidence it would not be proper for a court to convict other co-accused without any independent corroborative evidence. In the instant case, admittedly there is no independent corroborative evidence except the confessional statement of the aforesaid co-accused against the accused-appellants Dipak, Pradip and Balaram. Mr. Ghosh, learned Addl. P.P. also conceded to the above position. Therefore, according to this Court, the conviction of the aforesaid three accused-appellants by the learned trial court was unwarranted. Accordingly, the order of their conviction under Section 395, IPC and sentence to suffer R.I. for ten years and to pay a fine of Rs. 2,000 each, i/d. to suffer further R.I. for two months and the order of their conviction under Section27 of Army, Act and sentence to suffer R.I. for six months are hereby set aside and they are acquitted from the charge levelled against them. As all of them are on bail, their bail bonds are accordingly stand discharged. 36. On acquittal of the aforesaid three accused-appellants, there remain only two accused-appellants namely, Kartik Shil and Nimai Sukladas. 37. For commission of an offence under Section 395, IPC there must be an assembly of five or more persons and from the whole prosecution evidence, it appears that three miscreants namely, Nilchand, Kartik and Nimai being armed with bhojali trespassed into the room of P.W.1 and none of the prosecution witnesses stated that there were some other persons with them when those miscreants allegedly looted Rs. 4,000. The learned trial court also while framing charge did not state anywhere that except the present appellants, others also participated in the alleged commission of offence under Section 395, IPC. Had there been any hint in the charge framed by the learned trial court that there were more persons in the commission of offence than the charged accused then only the learned trial court could convict the remaining two accused-appellants under Section 395, IPC. But there is nothing in the charge that some others than the charged accused took part in the alleged commission of offence. 38. Mr. Deb rightly placed reliance on the judgment of the Apex Court in Ram Shankar Singh (supra) and Ram Lakhan. But there is nothing in the charge that some others than the charged accused took part in the alleged commission of offence. 38. Mr. Deb rightly placed reliance on the judgment of the Apex Court in Ram Shankar Singh (supra) and Ram Lakhan. In Ram Lakhan (supra) out of nine accused, the trial court had acquitted five persons and convicted four. But on appeal the High Court acquitted the remaining three persons and convicted the appellant Ram Lakhan. The Apex Court observed - "The position now is that out of nine persons named in the FIR who are alleged to have participated in the dacoity Ram Lakhan is alone left. Before an offence under Section 395 can be made out there must be an assembly of five or more persons. On the findings of the courts below it is manifest that only one person is now left. In these circumstances, therefore, the appellant cannot be convicted for an offence under Section 395. The High Court has not found that Ram Lakhan was guilty of any overt act so as to bring his case within any other minor offence. For these reasons, therefore, the conviction and sentence imposed on the appellant are set aside and he is acquitted of offence charged under Section 395." 39. In Ram Lakhan Singh (supra), particularly in para 10 the Apex Court in para held, thus- 10. ...The High Court having come to the conclusion that three out of the six convicted persons were not guilty, should have gone into the question whether there was satisfactory evidence to show that the three remaining appellants before it could be convicted under Section 395, IPC on the charge as framed. In any event, the three remaining accused persons could be convicted of the lesser offence of robbery under Section 392, IPC, if there was evidence to show that they had committed acts of theft and used violence while committing the theft. 40. In the case of Raj Kumar alias Raju v. State of Uttranchal (now Uttarakhand) (2008) 11 SCC 709 , the Apex Court relying on its earlier decision in Ram Lakhan (supra) held that for recording conviction of an offence of dacoity, there must be five or more persons. In absence of such finding, an accused cannot be convicted for an offence of dacoity. In absence of such finding, an accused cannot be convicted for an offence of dacoity. In a given case, however, it may happen that there may be five or more persons and the factum of five or more persons is either not disputed or is clearly established, but the court may not be able to record a finding as to identity of all the persons said to have committed the dacoity and may not be able to convict them and order their acquittal observing that their identity is not established. In such a case, conviction of less than five persons or even one can stand. But in absence of such finding, less than five persons cannot be convicted for an offence of dacoity. 41. Mr. Ghosh, learned Addl. Public Prosecutor also admitted the situation and fairly submitted that these two accused-appellant should not be convicted under Section 395, IPC, rather they may be convicted under Section 392, IPC as well as Section 27 of the Army Act. But Mr. Deb, learned Counsel appearing for the aforesaid two accused-appellants strenuously urged that in view of the confessional statement as recorded by the learned Magistrate, these two accused-appellants cannot be convicted either under Section 392, IPC or 27 of the Arms Act as they are entitled to the exemption from the punishment under Section 94, IPC as no case of abetment of dacoity is made out against them. 42. There is no doubt that if the court has to rely on the confessional statement of an accused which is exculpatory as well as inculpatory in nature then the court has to rely on it wholly. Court cannot reject one part of the statement for the purpose of acquitting the co-accused and accept the other port for convicting the maker of the confessional statement unless there is some special circumstances from which court can come to a definite conclusion regarding the truthfulness of the statement. Inculpatory statement can be accepted in special circumstances, which is absent in the instant case. 43. Inculpatory statement can be accepted in special circumstances, which is absent in the instant case. 43. On going through the confessional statements of aforesaid two accused-appellant (Kartik and Nimai), it appears that none of them had participated in the alleged offence of dacoity either with gun or bhojali, rather the aforesaid acquitted accused persons (Dipak, Pradip and Balaram) had token out three gada guns from the jungle and gone to the residence of P.W.2, Dhirendra and accused-appellant Kartik was on the road and accused-appellant Nimai was in the courtyard till their return. It also appears from record that before recording their statement under Section 164, Cr.PC, the learned Magistrate did not enquire from them, whether they were represented by any lawyer or not, which was their basic right to defend their case and if there was no lawyer then it was the duty of the learned Magistrate to provide them lawyer. It is the admitted position that none of them was represented by any lawyer either on 4.3.1994 or 5.3.1994. Kartik was for the first time represented by a lawyer on 8.3.1994 and Nimai on 16.3.1994. It is also fact that the law relating to confession under Section 164, Cr.PC does not prohibit learned Magistrate to record statement of an accused even when the accused person is not represented by any lawyer. It is noticed by this Court that these two accused-appellant in their 313 statement specifically stated, that they made the confessional statement before the learned Magistrate out of fear. But nowhere in the impugned judgment, the learned trial court discussed about that. According to this Court, the confessional statement of the aforesaid two accused-appellants was not a voluntary one and exculpatory in nature. Therefore, it would not be proper for this Court to rely on such confessional statement using against them. 44. So far the argument advanced by Mr. Deb regarding Section 94, IPC is concerned, this Court is of the view that the confessional statements of the aforesaid two accused-appellants (Kartik and Nimai) do not suggest that they participated in the alleged dacoity on threat of instant killing. 44. So far the argument advanced by Mr. Deb regarding Section 94, IPC is concerned, this Court is of the view that the confessional statements of the aforesaid two accused-appellants (Kartik and Nimai) do not suggest that they participated in the alleged dacoity on threat of instant killing. More so, when this Court disbelieves the confessional statement of these two accused-appellant so far participation of accused Dipak, Pradip and Balaram in the alleged crime is concerned, the question of participation of these two accused-appellants in the alleged crime under threat of instant killing does not arise at all. It is curious to note that when P.W.2, Dhirendra in his cross specifically stated that as the faces of the accused persons were covered, he could not identify them properly then how the informant P.W.1, Subrata could identify accused Kartik and Nimai and more so, according to P.W.5, Kalpana, mother of P.W.1, she could identify the accused persons with the help of the light of one lantern, which was damaged by the miscreants at the time of their departure, but neither the said lantern was seized by the police nor was produced before the learned trial court. That also creates a doubt about the identification of the accused persons by the prosecution witnesses. 45. So far the offence under Section 27 of the Arms Act is concerned, this Court noticed that none of the prosecution witnesses stated in their deposition that the miscreants used gun at the time of alleged crime. This Court also noticed that the bhojali, which was allegedly used by the miscreants in the alleged crime as per the prosecution witnesses was also neither seized by the police nor was produced before the learned trial court. Therefore, even if the story of recovery of gun as stated by accused-appellant Kartik is believed then also Section 27 of the Arms Act is not attracted as those guns were not used by these accused-appellants, hence, question of conviction of accused-appellant Kartik and Nimai under Section 27 of the Arms Act does not arise at all. 46. From record it appears that some currency notes were recovered from the accused persons, but it is not clear whether those recovered notes and the notes allegedly looted by the miscreants are same. Unless the number on the currency notes of various denominations are marked, it is difficult to identify those currency notes. 47. 46. From record it appears that some currency notes were recovered from the accused persons, but it is not clear whether those recovered notes and the notes allegedly looted by the miscreants are same. Unless the number on the currency notes of various denominations are marked, it is difficult to identify those currency notes. 47. Under the above facts and circumstances of the case, a doubt arises in the mind of this Court regarding participation of the accused-appellants, Kartik and Nimai in the alleged crime of dacoity and as such according to this Court, they are entitled to get the benefit of doubt. Accordingly, they are acquitted from the charges levelled against them by the learned court and the order of their conviction and sentence as recorded by the learned trial court vide impugned judgment is set aside. As they are on bail, their bail bonds stand discharged. 48. In the result, this appeal stands allowed. Appeal allowed.