JUDGMENT ASHIM KUMAR BANERJEE.J, 1. ONE Wasim Ashram was staying in a room in premises no. 120, C.G.R. Road, Khidirpur. He was a tenant under Nausad Ali, P.W. 2. He was a businessman dealing with jackets having stalled no. P-21, Five Star Market at Khidirpur, a market, just opposite to the premises where he was staying. He was sharing the room with one Golam, who used to sell barmuda/shorts on the footpath of Chowringhee. The said room was also used by Shamim Ahmed, father of Wasim, as a paint shop. 2. IT was early in the morning of November 19, 2001, both Wasim and Golam were sleeping in their room. At about 7.40 a.m., Golam heard the knock of the door from outside. The person from outside called by the name of Wasim by saying that his brother Farhad from Lucknow sent them for taking delivery of the goods. Hearing this, Wasim opened the door and welcomed them inside the room. The four appellants namely, Md. Akram, Md. Aslam, Sone Ali Khan and Khaled Mullick being aged about 20 to 30 years wearing trousers and shirts entered into the room. Wasim made them seated. They were speaking in Hindi. They disclosed their identity as C.B.I. Personnel and asked Wasim to disclose the gold biscuits, which he kept inside the room. Two of the four appellants put their respective revolvers on the head of Wasim and Golam. Other two started searching. They brought out Rs. 5,000/- in denomination of five hundred rupee notes and Rs. 30,000/- in denomination of one hundred rupee notes from a tin box and card board box and kept the money inside their pockets. Both of them (Wasim and Golam) could not raise any alarm out of fear. They threatened both of them and cautioned them not to raise any hue and cry. When they were about to leave, Wasim suddenly raised alarm. One of them after hearing the said hue and cry, shoot Wasim, Wasim died on the spot and all of them fled away. Wasim was lying died in the pool of blood in the room. The police came and asked about the incident in detail from Golam. Golam made a written complaint, which was treated as F.I.R. The police started investigation. On December 10, 2001 P.W. 20 took over charge of investigation. Wasim was lying died in the pool of blood in the room. The police came and asked about the incident in detail from Golam. Golam made a written complaint, which was treated as F.I.R. The police started investigation. On December 10, 2001 P.W. 20 took over charge of investigation. As per his deposition, based on source information he arrested Aslam at about 9.45 p.m. on an unspecified date from Mominpur Road and Mayurbhanj Road crossing. On the next day he was forwarded to Court. During investigation Aslam disclosed the names of the other accused. On December 21, 2001 Akram, Sone Ali and Khalid were arrested from Sudhir Bose Road and Diamond Harbour Road crossing with two country made single shoter recovered, one from Akram with live cartridge and other from Sone Ali with loaded one round live cartridge and three' extra round live cartridges. On December 23, 2001, P.W. 20 recovered Rs. 5,000/- from the place identified by Aslam. The accused no. 5 Tabrej was absconding. He was ultimately arrested in April 2002. Golam the only eye-witness identified all the four accused. The fifth one Tabrej was in fact waiting outside at the time of occurrence. P.W. 4 and 5 being the house owner and his relation were post occurrence witnesses. 3. THEY saw the miscreants running away after committing the murder as alleged. P.W. 4 identified Khalid, Akram and Sone Ali whereas, P.W. 5 identified Akram and Khalid only. P.W. 14 was the taxi driver in whose taxi miscreants came from Sadar Street. They got down at Fancy Market when Tabrej was waiting in his car. After some time Tabrej got down and was standing outside. The miscreants came after 10/15 minutes and said "Arjun cum hogaya, chol." Seeing firearms in their hands he initially declined to move. One of the accused then threatened to kill him. He was compelled to move. All of them left the place by the said taxi. The taxi driver thereafter reported to the police station on the next day with the help of his owner being P.W. 15. P.W. 13, Abdul was waiting for bus in the bus-stand along with one Raji Ahmed. He saw Tabrej waiting outside the taxi. He also saw the other four miscreants coming and then leaving the place by boarding the said taxi along with Tabrej. P.W. 13, Abdul was waiting for bus in the bus-stand along with one Raji Ahmed. He saw Tabrej waiting outside the taxi. He also saw the other four miscreants coming and then leaving the place by boarding the said taxi along with Tabrej. P.W. 13 identified Akram, Khalid, Tabrej and Sone Ali whereas, taxi driver identified Sone Ali, Aslam and Tabrej. P.W. 1 corroborated during trial what he had stated in his written complaint. He could not be shaken in cross- examination. The learned Magistrate held Test Identification Parade on January 4, 2002 when P.W. 3, 4 and 13 identified the accused as stated above. The next Test identification Parade was conducted after arrest of Tabrej. 4. THE accused, although pleaded innocence and faced trial, did not adduce any evidence. The learned Judge of the Court below, by judgment and order dated April 12, 2005 appearing at pages 154-189 of the paper book, held all the five accused guilty under Section 396 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for life along with fine of Rs. 5,000/- each and in default suffer rigorous imprisonment for six months. Being aggrieved, all the five accused filed separate appeals. During pendency of the appeal, Khalid forged a bail bond and managed to escape from jail. He is still absconding. Hence we have directed his appeal to be kept in abeyance for the time being. The other accused are in jail as we find from the report filed by the Public Prosecutor. Initially, Mr. J.N. Chatterjee, learned Advocate has argued on behalf of Tabrej. The other three accused are unrepresented despite repeated calls. Hence we have requested Mr. Chatterjee to argue on their behalf as well. We have asked the learned Public Prosecutor to regularize his appointment. According to Mr. Chatterjee, Tabrej was arrested from his native village. The prosecution failed to disclose the basis of his arrest as neither there was any recovery of any arm from him or any money allegedly looted from the victim nor there was any link to rope in Tabrej with the crime. Mr. Chatterjee has further contended that the learned Judge of the Court below based his conviction relying upon the evidence of PW-13 who was nothing but a stock witness. Mr. Chatterjee has further contended that the learned Judge of the Court below based his conviction relying upon the evidence of PW-13 who was nothing but a stock witness. Although the learned Judge did not fully believe him, he held Tabrej guilty and awarded sentence relying on the evidence of PW-14. Mr. Chatterjee has contended that there was no corroboration from any other witness with regard to his implication. Mr. Chatterjee has strenuously argued that there was a long gap between the occurrence and the test identification parade conducted by the Magistrate in respect of Tabrej. Even if PW-13 and PW-15 are genuine witnesses there might be every possibility of committing mistake because of the long lapse of time. Mr. Chatterjee has further contended that while it is true that the police is not obliged to disclose the source of information, they should disclose the result of their investigation to enable the learned Magistrate to take cognizance of the matter. In the instant case no such disclosure was made. In this regard he has relied on two Apex Court decisions reported in 1997, Volume-VI, Supreme Court Cases, Page-171 (Vijender Vs. State of Delhi) and 1997, Volume-VI, Supreme Court Cases, Page-185 (Kaptan Singh And Others Vs. State of Madhya Pradesh and Another) Mr. Chatterjee has also contended that a vital witness, Razi Ahamed who was standing in the bus stand, was not examined. 5. HE has lastly contended that in case this Court is not impressed by the argument made on behalf of Tabrej sympathetic view should be taken as the said accused is languishing in jail for more than eight years and the sentence could be appropriately modified. To support his contention he has relied on three decisions:- a) Mahmood And Others Vs. State of Bihar reported in 2000, Criminal Law Journal, Page-1442. b) Samar Roy @ Kallu Vs. State of West Bengal reported in 2009, Volume-I, Calcutta High Court Notes, Page-925. c) Bengai Mandal @ Begai Mandal Vs. State of Bihar reported in 2010, Volume-I, Supreme, Page-49. Appearing for Md. Aslam, Akram and Sone Ali, Mr. Chatterjee has reiterated what he submitted on behalf of Tabrej. In addition, he has contended that there was no attempt on the part of the Investigating Agency to have the seized arms chemically examined by the forensic expert to match the bullet found from the body of the victim. Appearing for Md. Aslam, Akram and Sone Ali, Mr. Chatterjee has reiterated what he submitted on behalf of Tabrej. In addition, he has contended that there was no attempt on the part of the Investigating Agency to have the seized arms chemically examined by the forensic expert to match the bullet found from the body of the victim. Moreover, the money so recovered from Aslam was not matched with the details of the sums, if any, recorded at the time of making of the complaint. 6. HE has further contended that Golam being the only eye-witness was not safe to be relied upon in absence of any corroboration. There was every possibility of committing mistake by Sk. Nausad (PW-4) and Nisar (PW-5) to identify the accused as they saw them running away from the place of occurrence. Moreover, they identified the accused after about one and half months. Similarly PW-13 being a stock witness of the police was not reliable. He has prayed for acquittal of the said accused or in the alternative, modification of the sentence. Opposing the appeals the learned Public Prosecutor relied on exhibit-24 wherein Aslam confessed his guilt before the Investigating Officer and disclosed the names of the other accused. He has also relied on the deposition of PW-20, the Investigating Officer and has drawn our attention to the same. The learned Public Prosecutor has relied upon the Supreme Court decision in the case of Abdul Wahid Khan Alias Wahid and Others Vs. State of Andhra Pradesh reported in 2005, Supreme Court Cases (Criminal), Page-1301 wherein the Apex Court observed that merely because the second test identification parade was held, that cannot be a suspicious circumstance. The Apex Court also observed that test identification is done to check upon the veracity and it was in the nature of corroboration of the statement made in court. The learned Public Prosecutor has contended that the learned Judge of the Court below, upon examination of the evidence, held all the accused guilty of the offence and there was no scope for interference. He has prayed for dismissal of the appeals. We have considered the rival contentions. We have perused the evidence. It is also well-settled principle that it is quality and not quantity that matters. It is true that the complainant was the only eye-witness. Unfortunately there was no other eye- witness. He has prayed for dismissal of the appeals. We have considered the rival contentions. We have perused the evidence. It is also well-settled principle that it is quality and not quantity that matters. It is true that the complainant was the only eye-witness. Unfortunately there was no other eye- witness. He narrated in detail the incident before the police at the time of making of the complaint. He reiterated, what he had stated in the complaint, before the Court at the time of his examination during trial. He could not be shaken in cross-examination. We have found his evidence reliable and trustworthy. His ocular evidence is sufficient enough to convict the appellants being Aslam, Akram and Sone Ali. Moreover, the incident narrated by him got corroboration from the post occurrence witnesses being PW-4 and 5 who saw them running away, so was PW-13. The Taxi Driver, PW-14 also deposed that he took the accused to the place of occurrence and took them back after commission of the crime. This is, in our view, sufficient enough to convict those three appellants. With regard to Tabrej, even if we discard the evidence of Gulam Kader the evidence of the Taxi Driver was enough to convict him. Lot of arguments was made by Mr. Chatterjee on the name "Arjun and "Arju". Arju and Arjun are synonymous. In any event, a person may have a different name that does not make any difference, especially when the person concerned was identified in the test identification parade by the Taxi Driver who deposed to the said effect. We do not find any scope of interference on that score. 7. WE thus uphold the conviction of Md. Aslam alias Buro Aslam, Md. Akram, Tabrej as well as Sone Ali Khan alias Chote Khan. On the issue of sentence, Mr. Chatterjee made elaborate submissions and has contended that we should consider the sentences imposed by the Court below. According to him, killing was a consequential crime in the case of dacoity. Since the Court below convicted the accused only under Section 396 of the Indian Penal Code this Court should sympathetically consider whether the sentence could be reduced. WE have given our anxious thought on the same. Committing dacoity is a crime, causing death to a person is a heinous crime. Since the Court below convicted the accused only under Section 396 of the Indian Penal Code this Court should sympathetically consider whether the sentence could be reduced. WE have given our anxious thought on the same. Committing dacoity is a crime, causing death to a person is a heinous crime. From the evidence, it would appear that after committing dacoity they were fleeing away from the place and while doing so, they killed the victim. We do not find any special circumstance to reduce the sentence in the case of Aslam, Akram and Sone Ali. 8. HOWEVER, in case of Tabrej, we find that he was not on the spot. He was waiting outside and was not there at the time of shooting of the victim. Considering such circumstance we feel interest of justice would subsurb, if we modify his sentence by awarding him ten years rigorous imprisonment coupled with fine of Rs. 20,000/- and in default to suffer further rigorous imprisonment for two years. In case fine is realised fifty per cent of the amount be given to the family of the victim. The CRA No.346, 405 and 608 of 2005 fail and are hereby dismissed. CRA 340 of 2005 is disposed of by affirming the conviction and modifying the sentence as above. A copy of this judgment be sent to each of the accused now in jail for their information. Let a copy of this judgment along with Lower Court Records be sent down at once. Urgent Xerox certified copy will be given to the parties, if applied for.