JUDGMENT : ASHIM KUMAR BANERJEE.J: 1. Preface these two appeals would involve same accused. The facts are somewhat correlated. Hence, I intend to dispose of these two appeals by this common judgment. 2. FACTS CRA 361 of 2009 on the night of August 26/27 of 2006 around 12.30 a.m. truck No. WB 65-0768 was returning after loading sand in Chanchol. When the truck was passing between Sripur and Bhagabanpur under Ratua Police Station, the driver Sk. Manarul found a tree fallen cross wise and a van rickshaw (bhutbhuti) standing on the road with passengers. Manarul had to slow the speed. Three/four unknown persons forcibly got into the truck and demanded money from Manarul holding a pistol on his head. They threatened to kill him if their demand was not met. Manarul could see three/four dacoits standing with pistol, knife and iron roads in their hands, with the help of the truck light. He initially refused. The dacoits started assaulting him by feast and blows. Being frightened, Manarul took out rupees four thousand from his pocket. The dacoit snatched his purse on which his name was embossed with nail polish. The miscreants ordered him to keep the truck standing. At that moment another truck being No. HR- 47/2767 was passing. The miscreants stopped the truck by beating the driver and his assistant and forced them to get down at the gun point. They snatched money and mobile phone from them. The name of the truck driver was Jasbinder Singh and his assistant was Durbindar Singh. They were robbed of rupees nine thousand and a mobile phone of TATA INDICOM model. They also snatched rupees five hundred and fifteen hundred from two other persons, One being a tractor driver having registration No.WB-65-8071. Thereafter some more cars came when miscreants snatched money from them and forced them to stay. In the mean time the Police rushed to the spot and miscreants fled away. Police ran after the miscreants, but in vain. The miscreants put on pant-shirt and vest. They were all between twenty/twenty -five years of age. They are Bengali and Hindi speaking having average height. Manarul lodged a complaint that was treated as FIR. The Police subsequently apprehended five persons being the respondents above-named and charged them for committing dacoity with illegal weapons. The miscreants put on pant-shirt and vest. They were all between twenty/twenty -five years of age. They are Bengali and Hindi speaking having average height. Manarul lodged a complaint that was treated as FIR. The Police subsequently apprehended five persons being the respondents above-named and charged them for committing dacoity with illegal weapons. Two separate charge-sheets were issued, one under Sections 395/397/412 of the Indian Penal Code and the other under Section 25 (1) (a) read with Section 27 of the Arms Act. The accused pleaded innocence and faced trial. CRA 362 of 2009 S.I. Aniruddha Goswami along with Force was patrolling in the morning of August 27, 2006. They found the respondent gossiping in a tea stall of Ratan Das being PW-7. Aniruddha intercepted them in the tea stall. On being asked, they disclosed their identity as above. On conducting a search, the Police Force recovered one double barrel country made pipe-gun from the waist of accused Ataur Rahaman as also a sum of rupees two thousand having twenty notes of hundred rupee currency note. Aniruddha also found one single barrel country made pipe-gun from the waist of Anowar Ali. He recovered one .303 live cat ridge from the shirt pocket of Anowar Ali. He recovered another bullet (.303) from the trouser pocket of Rajibul, rupees two thousand from the possession of Ataur, eleven hundred and ten from the possession of Anowar, rupees seven hundred and seventy from the possession of Rezabul, one TATA INDICOM Mobile set having mobile no. 927865974. On interrogation the accused confessed that they had committed dacoity in between Sripur and Bhagabanpur. They confessed being seven in number, the remaining two Montu and Haran absconded. They failed to produce any paper or valid document regarding possession of the arms and ammunition. The Police seized those articles in presence of Ratan Das, the tea stall owner being PW-7, Sankar Rajak (PW-8). Aniruddha prepared the seizure list. The seizure was conducted by Aniruddha being modified by ASI, Raju Sarkar, Home Guard 1276 Sudarshan Saha, NBF 54518 Md. Sajahan Ali. On the basis of a written complaint lodged by Aniruddha the Police initiated proceeding against the above appellants and charged them for the offence committed under Section 27 of the Arms Act. The accused pleaded not guilty and faced trial. On a combined reading of the facts involved in both the appeals the correlation is apparent. 3. Sajahan Ali. On the basis of a written complaint lodged by Aniruddha the Police initiated proceeding against the above appellants and charged them for the offence committed under Section 27 of the Arms Act. The accused pleaded not guilty and faced trial. On a combined reading of the facts involved in both the appeals the correlation is apparent. 3. TRIAL Prosecution examined altogether sixteen witnesses in CRA-361 and thirteen witnesses in CRA-362. Some of them are common in both the appeals. CRA-361 of 2009 Before the trial the Test Identification Parade was held. Six eyewitnesses were examined during trial in 361. Out of them three attended the Test Identification Parade. PWs-2 and 15 were unsuccessful in identifying the accused. Only PW-4 Humayun identified three out of five accused. However, Humayun during trial deposed that he could identify all the accused. PW-1 Manarul, PW-2 Anjur, PW-4 Humaun, PW-6 Niranjan, PW-7 Shyam Sundar and PW-15 Abdullah were the eye-witnesses, out of whom PW-1, 2 and 10, were declared hostile. PW-4, Humaun only could identify the accused. According to the other eye-witnesses, they could not identify the miscreants as their faces were covered by towel (Gamcha). Fact remains, except Humaun no one could identify the miscreants who saw them committing dacoity. PW-8 (Ratan Das), Tea Stall Owner, PW-9 (Sayed Ali), PW-10 (Md. Tajimul) PW-11 (Yousuf Ali, Pan Bidi Shop Owner) and PW-12 (Sankar Rajak also Pan Bidi Shop Owner) were the seizure witnesses. None of them could identify the accused. Ratan, Sayed, Yousuf and Sankar were witness to recovery of arms. Tazimul was a seizure witness with regard to the money bag which was recovered from the house of Montu. On analysis of the evidence, it is apparent that none of them could identify the accused some of them were declared hostile. Question remains, when none of the prosecution witnesses could identify the accused whether the learned Judge was right in relying upon the sole evidence of Humaun being PW-4 and to what extent, it was safe to believe Humaun. Let us closely examine the deposition of Humaun. Humaun attended Test Identification Parade and identified the accused as stated by him at the trial. Let us closely examine the deposition of Humaun. Humaun attended Test Identification Parade and identified the accused as stated by him at the trial. PW-12, the learned Magistrate, who conducted the Test Identification Parade, deposed that Anjur and Abdulla had failed to identify any suspect whereas Humaun could identify Ataur, Anowar and Rajibul “by touching them in person in their body” in his presence. PW-1, Manarul in his cross-examination deposed that the faces of the miscreants were wrapped with cloth and he could not identify them. Manarul was corroborated on this score by PW-6, Niranjan who also stated that he could not identify as their faces were covered with a piece of cloth. If we believe PW-1 and 6 we have to disbelieve PW-4. PW-2 however stated that he initially told the Police that he could identify the dacoit with the help of the headlight of the vehicle. However he could not identify them in Test Identification Parade as also in Court and he was declared hostile. There is one more salient feature that in examination-in-chief Humaun said, “I attended Test Identification Parade and identified accused”. In cross-examination he said, “I could identify five persons in the Test Identification Parade”. If we have to believe Humaun on that score we have to disbelieve the learned Magistrate who had no interest in the instant case. In my view, it was difficult for the learned Judge to sign the judgment of conviction solely based upon the evidence of Humaun. Fact remains, dacoity was committed. Fact remains, accused were apprehended by the Police in the other case being CRA 362 on the next day morning. I would discuss in detail the next case shortly hereinafter. Fact remains, the TATA INDICOM Mobile and the purse were recovered. However, those were not identified by the owners. The prosecution did not produce them for identification by the witnesses. No Test Identification Parade was held on that score. CRA 362 of 2009 The Police party came and deposed in favour of prosecution. PW-5, 7, 8 and 9 were independent witnesses whereas the other witnesses were members of Police Force. PW-7, Ratan Das deposed that he was witness to recovery of the arms from the possession of the persons who were apprehended by the Police Force in his Tea Stall. He also deposed that those persons could not show any supporting document for custody of those arms. PW-7, Ratan Das deposed that he was witness to recovery of the arms from the possession of the persons who were apprehended by the Police Force in his Tea Stall. He also deposed that those persons could not show any supporting document for custody of those arms. He also deposed that those persons identified themselves as Ataur, Anowar, Ziaul and Amjad. He also signed the seizure list. What he could not do was identification of the accused in Court. In fact that question was not asked to him. In cross-examination he said, he was neither examined by the Police nor he stated anything to them. PW-8 (Sankar) also corroborated Ratan. He however took their names as Ataur, Amjad and Anowar. No question was put to him for identification of those accused persons on the dock. PW-9(Usuf Ali) corroborated PW-7 (Ratan Das) and 8 (Sankar Rajak) and deposed in the same way. PW-1 (Raju Sarkar), PW-2 (Subinay Roy), PW-3 (Sudhangshu Saha), PW-4 (Aniruddha Goswami), being members of the Police party corroborated each other on the issue of raid and recovery of arms. They also consistently identified the accused. PW-10 (Prakash Mondal), PW-11 (Maitreyi Chowdhury) and PW-12 (Aloke Bhowmik) proved the permission of the District Magistrate to initiate the proceedings under the Arms Act. On the basis of the aforesaid evidence the learned Judge held all the accused guilty of the respective offence and convicted them accordingly, Hence these appeals by the appellant. 4. Contention of the appellant Mr. Shataroop Purkayastha, learned counsel appearing for the appellants contended as follows:- (i) There were substantial anomalies which would bound to raise suspicion in the mind of the Court and the learned Judge erred in ignoring the same while signing the judgment of acquittal. (ii) None of the prosecution witnesses could identify the accused in CRA 361 except Humaun who was unreliable in view of his contradictions. (iii) The recovery of the purse was not proved, as the seizure witnesses became hostile. The purse was not shown to the witness being the owner of the same. (iv) There was substantial delay in lodging the FIR. (v) In case of CRA 362 the independent witnesses could not identify the accused and it would be unsafe for the Court to sign the judgment of conviction solely based upon the evidence of the Police Force who were interested in the matter. Elaborating his argument, Mr. (iv) There was substantial delay in lodging the FIR. (v) In case of CRA 362 the independent witnesses could not identify the accused and it would be unsafe for the Court to sign the judgment of conviction solely based upon the evidence of the Police Force who were interested in the matter. Elaborating his argument, Mr. Purkayastha contended that there could be no relation between the two incidents. The independent witnesses in both the cases turned hostile as they could not identify the accused. Hence, the learned Judge erred in convicting the appellants in both the cases. To support his contention, Mr. Purkayastha cited the following decisions:- (i) 1998 Criminal Law Journal Page-2534 (Shaikh Umar Ahmed Shaikh and Another-Vs-State of Maharashtra) (ii) 1999 Supreme Court Cases (Criminal) Page-378 (Vijayan-Vs-State of Kerala) (iii) 2005 Supreme Court Cases (Criminal) Page-1218 (Umesh Kamat-Vs-State of Bihar) (iv) 2008 Volume-XIII SCALE Page-385 (State represented by Inspector of Police, Tamil Nadu-Vs-Sait @ Krishnakumar) 5. Contention of the prosecution:- Opposing the appeal, Mr. Sandipan Ganguly, learned counsel appearing for the State for CRA 362 contended as follows:- (i) Merely because the PW-1, 2, 3 and 4 were members of Police Force their evidence could not be discarded if the same could inspire confidence in Court. (ii) The evidence of PW-1, 3 and 4 in CRA 362, if read together along with the evidence of PW-7, 8 and 9 being the independent witnesses, the recovery could be held to be proved as all of them together could give vivid details of the seizure of the arms and implication of the accused. (iii) Once the recovery was proved the conviction was a consequence. (iv) The place of occurrence, time, arrest and seizure being proved, nothing more is required to sign the judgment of conviction. v) In absence of any allegation of previous enmity with the Police Force or disclosure of interest of the Police personnel their evidence could not be discarded. Mr. Achin Auddy, learned counsel appearing for the State adopted the submissions made by Mr. Ganguly and contended that evidence in CRA 361 was sufficient enough to sign the judgment of conviction and more so in view of its clear co-relation with the evidence in CRA 362. Mr. Ganguly and Mr. Auddy both prayed for dismissal of the appeals. 6. Mr. Achin Auddy, learned counsel appearing for the State adopted the submissions made by Mr. Ganguly and contended that evidence in CRA 361 was sufficient enough to sign the judgment of conviction and more so in view of its clear co-relation with the evidence in CRA 362. Mr. Ganguly and Mr. Auddy both prayed for dismissal of the appeals. 6. Our view in case of CRA 361 the evidence, in my view, was not sufficient to sign the judgment of conviction. Here I join issue with learned Judge. The incident of dacoity was proved. The recovery could not be proved in absence of any Test Identification Parade held for material exhibits as well as identification of those during trial. The involvement of the accused could also not be proved as none of the prosecution witnesses could identify them except Humayun. The evidence of Humaun does not inspire any confidence. He identified three accused during Test Identification Parade as stated by the learned Magistrate who conducted the same. During trial Humaun insisted that he identified all the accused, if I have to believe Humaun I would have to disbelieve learned Magistrate who had no interest in this matter. There is one more salient feature that eye-witnesses could not identify the accused as according to them face of the dacoits was wrapped in cloth. That explanation is not unusual. If they are to be believed, Humaun has to be disbelieved. Next comes its co-relation with recovery of arms. None of the independent witnesses who were present during recovery could identify the accused. Their evidence might be helpful in the other case as they could vividly give particulars of seizure of arms. Their evidence is trustworthy. Merely because they could not identify the accused in Court when trial was held after two and half years of the incident their evidence could not be discarded. However their evidence does not help me to co-relate such incident with the incident of dacoity. Here I join issue with the learned Judge. I am however in full agreement with the learned Judge in the other case. In CRA 362 the independent witnesses 7, 8 and 9 gave vivid description of the incident of recovery. Their evidence tallied with the members of the Police Force being PW-1, 2, 3 and 4. Here I join issue with the learned Judge. I am however in full agreement with the learned Judge in the other case. In CRA 362 the independent witnesses 7, 8 and 9 gave vivid description of the incident of recovery. Their evidence tallied with the members of the Police Force being PW-1, 2, 3 and 4. It is true that they did not identify the accused on dock that might not be possible after two and half years. However such duty was successfully discharged by as many as four witnesses being PW-1, 2, 3 and 4. Taking a sum total, the prosecution was successful in proving the charges. However in case of Ziaul no evidence came out of any offence being committed under the Arms Act. It is true that he was a member of the gang who were taking tea in the tea stall that would not possibly implicate him under the Arms Act as charged against him. Ziaul, in my view, should get an order of acquittal in CRA 362. 7. Result the appeal being CRA 361 succeeds and is hereby allowed. The appeal being CRA 362 succeeds in case of Ziaul and fails in case of other appellants and is dismissed in respect of appellants nos. 1, 2, 3 and 4. 8. Direction the appellant no.5 Ziaul Haque be set at liberty at once. His bail bond is cancelled. In case appellant no.1, 2, 3 and 4 their conviction in CRA 362 is set aside. Let a modified jail warrant be issued in respect of appellant no.1, 2, 3 and 4 so as to suffer punishment only in case of CRA 362 so imposed upon them by the Court below. Let copy of this judgment be sent down at once along with the Lower Court Records. Additional copy be sent to the Correctional Home where the appellants are suffering sentence. CRA 361 of 2009 and CRA 362 of 2009 are disposed of accordingly. Urgent Xerox certified copy will be given to the parties, if applied for.