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Calcutta High Court · body

2011 DIGILAW 641 (CAL)

Md. Imram Khan v. STATE OF WEST BENGAL

2011-05-06

KANCHAN CHAKRABORTY

body2011
JUDGMENT Kanchan Chakraborty, J. 1. THE Criminal appeal being no. CRA 55 of 2005 is filed at the instance of Md. Imran Khan challenging the judgement dated 29.11.2004 passed by Sri S. Bhattacharya, learned Additional District and Sessions Judge, Fast Track Court no. V, Alipore, 24 parganas (South) in Sessions case no. 10(1), 2004 (S.T. no. 4/3 of 2004) arising out of West Port police station case no. 128 dated 17.8.2003 thereby convicting the appellant punishable under Section 392 IPC and sentencing him to suffer R.I. for a term of Seven(7) years and to pay a fine of Rs. 1000/-, in default, to suffer S.I. for another one year. THE appellant was further sentenced for seven years for the offence punishable under Section 497. Both the offences were directed to run concurrently. 2. THE Criminal appeal being no. CRA 554 of 2005 is preferred by Badsha Khan challenging the judgment dated 29.11.2004 passed by the learned Additional District and Sessions Judge, Fast Track Court no. 4, Alipore, South 24 Parganas in S.T. no. 4(3) of 2004( S.C. no. 10(1) of 2004) thereby convicting the appellant for commission of offences punishable under Sections 392 and 397 of IPC and sentencing him to suffer R.I. for seven years and to pay a fine of Rs. 1000/- , in default, S.I. for further period of one year for the offence under Section 392 of the Indian Penal Code and to suffer R.I. for a period of seven years for the offence under Section 397 of IPC directing both the sentence would run concurrently. The appeal being no. CRA 121 of 2005 is preferred at the instance of Kaniahya Bansfore challenging the judgment dated 29.11.2004 passed by the learned Court of Additional District and Sessions Judge, Fast Track Court no. V at Alipore, South 24 Parganas in essions Trial no. 4(3) of 2004 (S.C. no. 10(1) of 2004) thereby convicting the appellant under Section 392 and 397 of IPC and sentenced to suffer R.I. for seven years and to pay a fine of Rs. 1000/-, in default, S.I. for another one year and R.I. for seven years for the offence under Section 397 of IPC. 3. THE Criminal Appeal being no. 594 of 2005 is preferred by Md. Hasan Jann challenging the judgment and order dated 28.4.2005 in S.T. no. 13(3) of 2004 (S.C. no. 1000/-, in default, S.I. for another one year and R.I. for seven years for the offence under Section 397 of IPC. 3. THE Criminal Appeal being no. 594 of 2005 is preferred by Md. Hasan Jann challenging the judgment and order dated 28.4.2005 in S.T. no. 13(3) of 2004 (S.C. no. 16(1) of 2004) passed by Sri S. Bhattacharya, Additional District and Sessions Judge, Fast Track Court no. 5, Alipore District South 24 Parganas thereby convicting the appellant and others for offence under Section 392 IPC and 397 of IPC and sentenced them to suffer R.I. for 7 yeas and to pay a fine of Rs. 1000/-, in default, S.I. for two months and R.I. for seven yeas for offence under Section 397 IPC and pay a fine of Rs. 500/- with a direction that both the sentences would run concurrently. 4. THE appeal being no. CRA 337 of 2005 was filed at the instance of Md. Imran Khan challenging the judgment dated 28.4.2005 passed by Sri S. Bhattacharya learned Additional District and Sessions Judge, Fast Track Court no. V, Alipore, 24 parganas (South) in West Port police station case no. 167 of 2003 dated 19.10.2003 under Section 392 and 397 of IPC thereby convicting the appellant for offence punishable under Section 392 IPC and sentencing him to suffer R.I. for a term of seven years with a fine of Rs. 1000/- and to sentence R.I. for seven years and pay a fine of Rs. 400.- for the offence under Section 397 of IPC with a direction that the sentences would run concurrently. The appeal being no. CRA. No. 55 of 2005, CRA no. 553 of 2005 and CRA 121 of 2005 are taken up together for the sake of convenience and brevity. 5. THE appeal being no. CRA 594 of 2005 and CRA 337 of 2005 will be taken up afterwards separately. C.R.A. 55 of 2005 with C.R.A. 554 of 2005 with 121 of 2005 6. THESE three appeals are related to the same judgment and order dated 29.11.2004 passed by learned Additional District and Sessions Judge, Fast Track Court no. V, Alipore, 24 parganas (South) in Sessions case no. 10(1), 2004 (S.T. no. 4/3 of 2004) arising out of West Port police station case no. 128 dated 17.8.2003 under Section 392 and 397 of IPC. THESE three appeals are related to the same judgment and order dated 29.11.2004 passed by learned Additional District and Sessions Judge, Fast Track Court no. V, Alipore, 24 parganas (South) in Sessions case no. 10(1), 2004 (S.T. no. 4/3 of 2004) arising out of West Port police station case no. 128 dated 17.8.2003 under Section 392 and 397 of IPC. Imran Khan, Badsha Khan and Kanaiya Bansfore, the appellants in the above mentioned three appeals have challenged the judgment and order dated 29.11.2004 on the following grounds : a) that the learned Judge erred in law and in fact holding the appellants guilty of offences under Section 392 and 397 of IPC; b) that the impugned order of conviction and sentence was passed without appreciating the evidence on record in its proper perspective; c) that the learned Court relied on surmises and conjecture and recorded conviction wrongly; d) that the learned Court failed to appreciate the fact that the appellants were shown to the witnesses by the I.O. of the case prior to holding of T.I.P. e) that the learned Court failed to appreciate the fact that nothing was recovered from the possession of the appellants; f) that the learned Court failed to examine the appellants properly under Section 313 of the Cr.P.C. and put jumbled up questions and, as a result, caused gross miscarriage of justice; and g) that the judgment being otherwise bad in law, is liable to be set aside; 7. THE short reference to the factual aspects of the case is required to be given :- 8. ONE Indradeo Jaiswal and his business friends Sanoj Show and Tarak Kumar Sarnakar came to Calcutta on 17.8.2004 in the early morning in order to purchase readymade garments from one wholesale businessman Mr. R. K. Bappa of Matiabruz Readymade Market. They had R. 60,500/- in cash in their possession. They proceeded towards Matiabruz Readymade Market from Babu Bazar, Kiderpur with a hired taxi at about 6.15 in the morning. The taxi was bearing the number W.B 04-3981 of yellow colour. Beside the driver, there was another person in the said taxi. During their journey towards Matiabruz Market through C.G.R. Road the driver slowed the speed of the taxi near Hindustan Liver Factory due to poor condition of the road. The taxi was bearing the number W.B 04-3981 of yellow colour. Beside the driver, there was another person in the said taxi. During their journey towards Matiabruz Market through C.G.R. Road the driver slowed the speed of the taxi near Hindustan Liver Factory due to poor condition of the road. It was about 6.45 a.m. Four persons aged about 22-25 years forcefully unlocked the door of the taxi when the driver reduced the speed and entered into the taxi at the point of fire arms as well as dragger, knife etc. They snatched away Rs. 60.500/- cash from the possession of Indradeo, Sanoj and Tarak. They also snatched away wrist watches of Indradeo and others together with the papers of the vehicle and boarded off from the taxi near Jahazghata and fled away. Indradeo Jaiswal lodged the FIR in West Port Police Station on 17.8.2003 and on the basis of that FIR West Port police station case no. 128 dated 17.8.2003 under Sections 392 and 397 of IPC was started against unknown miscreants. The investigation into the case was actually taken up by S.I. A. K. De of Anti Dacoity and Robbery Squad, D.D. Calcutta. As the investigation progressed, four accused persons were arrested and produced before the Court of learned S.D.J.M. Alipore. The accused persons were placed in T.I.P. also. The investigation into the case ended in a charge-sheet under Section 392 and 397 of IPC against Kanhaiya Bansfore, Md. Imran Khan, Badsha Khan and Md. Sher Ali. The learned Trial Court framed charges under Section 392 and 397 against all the four accused persons who pleaded not guilty and desired to be tried. Accordingly, the Trial commenced. In course of trial, in all, 13 witnesses were examined on behalf of the prosecution. The FIR lodged by Indradeo Jaiswal was marked ex. 1. The reports of T.I.P were marked as ex. 3 series. The garage Register was marked as ex. 2. The sketch map of the place of occurrence was marked as ex. 6. Two seizure lists were admitted into evidence and marked as Ex. 4 and 7. 9. THE appellants and Md. Sher Ali pleaded their innocence. They neither examined any witness on their behalf nor filed any document in course of trial. The learned Court, upon consideration of evidence on record, oral and documentary, found the appellants and Md. 6. Two seizure lists were admitted into evidence and marked as Ex. 4 and 7. 9. THE appellants and Md. Sher Ali pleaded their innocence. They neither examined any witness on their behalf nor filed any document in course of trial. The learned Court, upon consideration of evidence on record, oral and documentary, found the appellants and Md. Sher Ali guilty of offences under Section 392/397 IPC and passed the judgment and order of sentence under challenge. 10. THE point to be decided in these appeals is whether the judgment of conviction and order of sentence under challenge are sustainable in law. Indradeo Jaiswal, the lodger of the FIR was examined as P.W. 1. He stated that on 16.8.2003 he, Sanoj Kumar Show and Tarak Kumar Sarnakar boarded on a taxi from Babubazar for purchasing readymade garment from Matiabruz market. Near Hindustan Level Corporation, the driver of the taxi reduced speed of the taxi because of bad condition of the road. He stated that at that time 4/5 persons forcibly boarded on that taxi and at the point of fire arms, took the taxi to a different direction. They looted money from them and thereafter left the taxi and fled away. The P.W. 1 stated further that he and his companions lost faith on the driver of the taxi and, accordingly, they left the taxi on the spot. They came to Matiabruz by a bus. They reported the incident to R. K. Bappa who advised them to report the police. They went to Matiabruz police station and therefrom West Port police station. The police officer took them to the place of occurrence. Thereafter, they again came back to the police station and the FIR was lodged (ex. 1). The P.W. 1 stated that he was called on by the I.O. to attend TIP in the Alipore Presidency Jail in respect of the culprits who were arrested in connection with the case. He attended the TIP together with his two associates. He could identify Badsha Khan and the Kaniaya Bansfore in the TIP. In his cross-examination, the P.W. 1 stated that the he visited Alipore Presidency Jail only one occasion to attend the TIP. He attended the TIP together with his two associates. He could identify Badsha Khan and the Kaniaya Bansfore in the TIP. In his cross-examination, the P.W. 1 stated that the he visited Alipore Presidency Jail only one occasion to attend the TIP. He stated clearly in his cross-examination that he was called on for the purpose of TIP first of all and was kept in a separate secured place which was away from the site and hearing of the place of TIP and the place where the other witnesses were kept. In his cross-examination, the P.W. 1 stated further that neither of them shouted out of fear when the dacoity took place. He has stated further that they could not resist miscreants when they boarded on the taxi forcibly. He has stated also that neither of them chased the miscreants when they fled away. 11. SANOJ Kumar shaw was examined as P.W. 2. He has stated that on the particular date and time when he along with P.W. 1 and P.W. 3 going to Matiabruz by a hired taxi, near Hindustan Level Factory when the speed of the taxi was reduced due to bad condition of the road, four persons forcibly opened the door of the taxi and entered therein. The driver was directed to go to different place. The miscreants had Bhojali, knife, pistol etc in their hand. They also manhandled the P.W. 1,2 and 3 and snatched away all their money and valuables forcibly. The miscreants left the taxi in at a lonely place and fled away. The P.W. 2 stated that they came to Mr. R. K. Bappa first of all and thereafter went to Matiabruz police station. There from they went to West Port police station and were taken to the spot for the purpose of identification of the spot. They returned back to the police station and the FIR was lodged. He stated that he was called on by the I.O. to attend TIP. He identified three miscreants, namely, Imran Khan, Sher Ali and Badsha Khan in the TIP. In his cross-examination, the P.W. 2 stated that in the TIP about 50 persons of same complexion and height were placed in the row together with the miscreants and he could identify three of them. He identified three miscreants, namely, Imran Khan, Sher Ali and Badsha Khan in the TIP. In his cross-examination, the P.W. 2 stated that in the TIP about 50 persons of same complexion and height were placed in the row together with the miscreants and he could identify three of them. He stated again that the witnesses including himself were kept inside the jail and called on one by one for the purpose of Tip. He denied that the miscreants were shown to them prior to TIP. He stated also that at the time of TIP he narrated the incident to the Magistrate required for their of identification. He denied that under the direction of the police he identified the accused persons in the TIP. 12. THE P.W. 3 Tarak Kumar Sarnakar has stated that on the relevant date and time he along with the P.W. 1 and P.W. 2 were going to Matiabruz readymade wholesale market by hiring the taxi from Babubazar. Near Hindustan Level Factory, when the speed of the vehicle was slowed down, four persons forcefully boarded on the taxi and at the point of Bhojali, knife and pistol took away money from them. They also manhandled them. A wrist watch was also snatched away. He also stated that the miscreants directed the taxi driver to change the route and after committing the dacoity, they left the taxi and fled away. THE P.W. 3 stated that they met R. K. Bappa first of all and according to his advise, they went to Matiabruz police station and thereafter West Port police station. The police official took them to the spot first of all and thereafter, the FIR was lodged. The P.W. 3 also identified the appellant Kaniaya Bansfore in the TIP. In his cross-examination, he stated that they came separately at the place of time of TIP. He denied that under the direction of police the accused persons were identified in the TIP. He also had given description of the manner in which TIP was held in his cross-examination. The P.W. 4 Baijyanath Singh, the taxi driver, supported the statement of the P.W. 1,2 and 3. He stated that he took three passengers from Babubazar from going to Matiabruz on the relevant date and time by his taxi being no. W.B no. 04-3981. He also had given description of the manner in which TIP was held in his cross-examination. The P.W. 4 Baijyanath Singh, the taxi driver, supported the statement of the P.W. 1,2 and 3. He stated that he took three passengers from Babubazar from going to Matiabruz on the relevant date and time by his taxi being no. W.B no. 04-3981. He stated that near Hindustan Level Factory, he reduced speed of the taxi because of bad condition of the road. One person stopped his taxi by raising hand. The moment he stopped the taxi, four miscreants forcibly entered into the taxi and started assaulting the passengers. They pointed a pistol at the P.W. 4 and asked him to leave the starring of the car. One of the miscreants started to ply the taxi and other three miscreants snatched away money and other valuables from the passengers. The taxi was stopped near the scrapyard and the miscreants left the place immediately. The P.W. 4 found afterwards that his taxi was seized by police and kept in West Port police station. He found three passengers boarded on taxi on that date in police station. On his questioning , he narrated the incident to the police officials. The P.W. 4 was called on to attend TIP in presence of Magistrate. The P.W. 4 could identify all the four accused/appellants in the TIP. He denied the suggestion in his cross-examination that he identified the accused persons in the TIP at the instance of the police. 13. NIRVAN Kuesong was examined as P.W. 5. He was the Judicial Magistrate who conducted the TIP of the accused/appellants on 21.11.2003 at the Presidency Correctional Home. He identified three reports of TIP prepared by him (Ex. 3 series). The P.W. 7 is a witness to the seizure of the taxi of the P.W. 4. The P.W. 8 is also a witness to the seizure in respect of the taxi of the P.W. 4. The P.W. 9 is Gita Rani Saha, the owner of the seized taxi being no. W.B. 04-3981 wherein the P.W 1, P.W. 2 and P.W. 3 boarded on the relevant date for going to Matiabruz and wherein the accused/appellants forcibly entered into and robbed the P.W. 1,2 and 3 in presence of the P.W. 4. 14. The P.W. 9 is Gita Rani Saha, the owner of the seized taxi being no. W.B. 04-3981 wherein the P.W 1, P.W. 2 and P.W. 3 boarded on the relevant date for going to Matiabruz and wherein the accused/appellants forcibly entered into and robbed the P.W. 1,2 and 3 in presence of the P.W. 4. 14. THE P.W. 12 is the I.O. of the case who has supported the statement of P.W. 1, 2,3 and 4. P.W. 12 is the police official posted in West Port police Station on the relevant date. He stated that on the relevant date P.W. 1 Indrodeo Jaiswal and two others came to the police station and reported him that while they were travelling by a taxi, four miscreants boarded on the taxi forcibly and committed robbery of cash and wrist watch. He took them to the place of occurrence to ascertain territorial jurisdiction. Thereafter, coming back to the police station he received the FIR and accordingly, started the case. Investigation into the case was ultimately handed over to the P.W. 13 Arun Kumar De of Anti Dacoity and Robbery Squared of D.D. Calcutta. THE Learned Trial Court upon consideration of the evidence on record, oral and documentary, found the appellants guilty of offences under Section 392 and 397 of IPC beyond shadow of any reasonable doubt. He recorded their conviction and sentenced them to suffer R.I. for seven years for the offence under Section 392 and to suffer R.I. for seven years for the offence under Section 397 of IPC with a direction that both the sentences would run concurrently. Mr. Debasish Roy, the learned Counsel appearing for the appellants contended that the learned Trial Court should not have recorded conviction on the basis of report of the TIP only. It was specific case of the defense in course of trial that the appellants were shown to the witnesses before the TIP was held. That being so, the learned Court should not have believed the report of TIP. 15. I find no substance in the contention of Mr. Roy. The P.W. 1,2,3 as well as the P.W. 4 have stated categorically that they were called on by the I.O. to attend TIP in the Alipore Presidency Jail and they could identify the appellants in the TIP. 15. I find no substance in the contention of Mr. Roy. The P.W. 1,2,3 as well as the P.W. 4 have stated categorically that they were called on by the I.O. to attend TIP in the Alipore Presidency Jail and they could identify the appellants in the TIP. They denied the suggestion of the defense in their cross-examination that the appellants were shown to them by the I.O. prior to holding of the TIP. The P.W. 5, the judicial Magistrate who conducted the TIP has made it clear that he conducted the TIP according to procedure laid down and there was no violation of procedure in the matter of holding TIP. The Ex. 3 series altogether supports the statement of the witnesses. It is true that identification in TIP can not be the sole basis of conviction. In the instant case, it appears form the evidence on record that all the witnesses i.e. the P.W. 1 to P.W. 4 identified the appellants in Court as the persons who committed the offence. Identification in TIP can well be acted upon where there is actual identification in Court. When there was identification of the appellants in Court supported with identification in TIP, the learned Trial Court made no mistake or error in coming to a conclusion that the appellants were the real culprits who had committed the offence of robbery. I find that the learned Trial Court appreciated the evidence in its proper perspective. The witnesses who identified the appellants as the miscreants, stood against the test of cross-examination very confidently. Their confidence was not shakened by the defence at any point of time. The fact that the taxi seized by the police in course of investigation which was carrying the P.W. 1,2 and 3 at the relevant date and time, has been established. The fact that the P.W. 4 was driving the taxi has also been established. All the witnesses made consistent and corroborating statement in respect of manner in which the incident had taken place. There is no doubt in the prosecution case as far as the appellants are concerned. I find that the learned Court has come to a right conclusion that the appellants committed the alleged robbery in the taxi and thereby committed offences under Section 392 and 397 of the IPC. There is no doubt in the prosecution case as far as the appellants are concerned. I find that the learned Court has come to a right conclusion that the appellants committed the alleged robbery in the taxi and thereby committed offences under Section 392 and 397 of the IPC. Therefore, I do not find any reason to upset the judgment of conviction recorded by the learned Trial Court. 16. IT has been contend by Mr. Roy that the appellant Imran Khan is in custody since 29.10.2003 in connection with the case. The appellant Badsha Khan and Kaniaya Bansfore (Appellants) are also in custody since 29.10.2003 in connection with this cases. They have virtually undergone the sentence imposed by the learned Trial Court. He contended further that considering the fact the appellants are in custody since 29.10.2003 and the sentence of R.I. for seven years for both the offences are to ran concurrently, has almost been suffered, an appropriate order be passed by way of modifying the sentence. 17. I have considered the submission of Mr. Ray which is supported by Mr. Ghosal, learned Counsel appearing for the respondent/State. It is true that all the appellants are in custody since 29.10.2003 in connection with this case. It is also true that they had almost suffered the substantial sentence passed by the Court. Accordingly, I, while maintaining the order of conviction, I, modifying the order of sentence to the effect that the sentence to suffer R.I. for seven years is reduced to the period they have already spent in custody in connection with the case. 18. WITH the findings above, the appeals are disposed of. C.R.A. 594 of 2005 with C.R.A. 337 of 2005 The Criminal Appeal being no. 594 of 2005 has been preferred by Md. Hasan Jann and the Criminal Appeal being no. 337 of 2005 has been filed by Md. Imran Khan are directed against the judgment and order dated 28.4.2005 in S.T. No. 13(3) of 2004 passed by the learned Additional District and Sessions Judge, Fast Track Court no. 5, Alipore. 19. THE appellant Md. Hasan Jann and Md. Imran Khan were found guilty of offences under Section 392 and 397 of IPC and sentenced to suffer R.I. for seven years and to pay a fine of Rs. 5, Alipore. 19. THE appellant Md. Hasan Jann and Md. Imran Khan were found guilty of offences under Section 392 and 397 of IPC and sentenced to suffer R.I. for seven years and to pay a fine of Rs. 1000/-, in default, S.I. for two months for the offence under Section 392 of IPC and to suffer R.I. for seven years for the offence Under Section 397 IPC and to pay a fine of Rs. 500/- with a direction that both the sentences would run concurrently. 20. THE case of the prosecution in the Trial Court is stated below in short : One Jogendra Shah and his nephew Monoj Shah came to Howrah on 18.10.2003 in the early morning from Dist. Balsali, Bihar. They hired one taxi for going to Matiabruze V.I.P. Market in order to purchase readymade garments. The speed of the taxi was slowed down near Singerhati More due to bad condition of road. Taking that opportunity, three miscreants forcefully entered into the taxi by opening door from both sides, abused the diver and at the point of pipe gun snatched away Rs. 60,000/-, in all and Titan Wrist watch from Monoj. One of the miscreants drove the taxi for about 20/25 minutes and boarded off the taxi at a lonely place. The number of the taxi was WMT 1692. Jogendra Shah reported the matter to Rambabu and thereafter go to readymade garments Chamber of Commerce at Matiabruze. Ultimately, they went to Matiabruze police station and therefrom to West Port police station and lodged the FIR. West Port police station case no. 167 dated 19.10.2003 under Section 392/397 IPC read with Section 25 and 27 Arms Act was started and on completion of investigation, a cahrge-sheet was filed against three persons, namely, Kaniaya Bansfore, Md. Imran Khan and Md. Hasan Jnn. Since they pleaded not guilty to the charges leveled against them, the trial commenced. The learned Trial Court, upon consideration of the evidence on record, oral and documentary, found all the accused persons including the appellants guilty of offences under Section 392 and 397 of IPC. The learned Trial Court convicted them thereto and sentenced them to suffer R.I. for seven years and to pay a fine of Rs. 1000/- for offence under Section 392 of IPC and to suffer R.I. for seven years and to pay fine of Rs. The learned Trial Court convicted them thereto and sentenced them to suffer R.I. for seven years and to pay a fine of Rs. 1000/- for offence under Section 392 of IPC and to suffer R.I. for seven years and to pay fine of Rs. 500/- for the offence under Section 397 IPC with a direction that both the sentences would run concurrently. 21. THE appellants Md. Hasan Jnn and Md. Imran Khan, being dissatisfied with and aggrieved by the said judgment and order of sentence have preferred these two appeals on manifold grounds, mainly :- a) that the learned Trial Court failed to appreciate the evidence on record in its proper perspective ; b) that the learned Court failed to appreciate that simply because the appellants were identified in the TIP by the witnesses, they can not be said to have committed the offences; c) that the learned Court erred in believing the evidence of Jogendra Shah, Monoj Shah, the P.W. 3 i.e. the driver of the taxi ignoring the specific defense case that the appellants were shown to the witnesses by the I.O. prior to holding of the TIP; d) that the learned Court failed to appreciate the fact that nothing was recovered from the possession of the appellants ; and e) that the judgment being otherwise bad in law, is liable to be set aside; 22. I have carefully gone through the evidence of the witnesses examined on behalf of the prosecution as well as the judgment impugned with rapt attention. The prosecution case, according to the FIR, i.e., Ex. 1/ 2, Jogendra and Monoj boarded on a taxi on 19.10.2003 at about seven hours in order to go to Matiabruz VIP market for purchasing readymade garments. Near singerhati More, the speed of the taxi was reduced because of bad condition of the road. The moment the speed slowed down, three miscreants forcefully entered into the taxi. One of them took the driver's seat while other two, at the point of pipe gun, snatched away Rs. 60,000/-, in all, and a Titan wrist watch. They boarded off the taxi about 20/25 minutes thereafter with a direction to the driver to take the taxi towards Howrah. In the FIR it has been mentioned that the number of taxi was WMT -1692. 60,000/-, in all, and a Titan wrist watch. They boarded off the taxi about 20/25 minutes thereafter with a direction to the driver to take the taxi towards Howrah. In the FIR it has been mentioned that the number of taxi was WMT -1692. Jogendra Shah and Monoj Shah went to Rambabu first of all and thereafter Bengal readymade garments Chamber of Commerce and reported the matter. Thereafter, they went to Maitiabruz police station and there from to the West Port Police Station where the FIR (Ex 1/ 2 ) was lodged. The lodger of the FIR Jogendra was examined as P.W. 1. He narrated the incident clearly to the effect that on the relevant date and time while he and P.W. 2 Monoj were going to Matiabruz VIP market by a hired taxi, three miscreants forcefully entered into the taxi when the speed of the taxi was slowed down near Singarhati More and one of them took the driver's seat while other two drove them at the point of gun. He has stated further that the miscreants dropped the taxi for about 20/25 minutes and boarded off the taxi with a direction to the taxi driver to take the P.W. 1 and P.W. 2 to Howrah. The P.W. 1 stated that he was called on by the I.O. to take part in the TIP of the accused persons arrested in connection with case. He could identify all the accused/appellants in the TIP as well as in the Court. I find that the P.W. 1 stood against the test of cross-examination confidently and made consistent and corroborating statement all through. The P.W. 2 Monoj Shah who accompanied the P.W. 1 on the fateful date supported the statement of the P.W. 1. He also identified the accused/appellants in the TIP held at Presidency Jail and in the Court. He also stood against the test of cross-examination quite confidently and his version remained unshakened. 23. THE P.W. 3 the taxi driver stated clearly that on 19.10.2003 the P.W. 1 and 2 hired his taxi in order to go to Matiabruze. At Singarhati More, due to bad condition of the road, the speed of the taxi was reduced. At that time, the P.W. 3 stated, one persons forcefully took driver's seat by removing him after giving him a blow on his mouth. At Singarhati More, due to bad condition of the road, the speed of the taxi was reduced. At that time, the P.W. 3 stated, one persons forcefully took driver's seat by removing him after giving him a blow on his mouth. Other two miscreants robbed the passengers at a point of a pistol. They took the taxi at different places. They boarded off the taxi in a lonely place, handed over 100/- note to the driver and asked him to leave the passengers wherefrom they were boarded on. The P.W. 2 went to the Shyampukur police station and thereafter on his way to West Port police station, he was intercepted by police. On questioning, he confirmed the happening of the incident to the police. The taxi was taken to West Port police station where the taxi as well as documents relating to taxi were seized under a seizure list. I find that the P.W. 3 made consistent statement which corroborated the statement of P.W. 1 and P.W. 2 as well as the fact averred in the FIR. On the other hand, the defense tried to shake his testimony in course of his cross- examination but, he made no statement, whatsoever, contrary to and inconsistent with the prosecution case. The P.W. 4 is a worker of Bengal readymade Chamber of Commerce at VIP Market, Matiabruze. He had been to the West Port police station and was told about the incident. He found the P.W. 1 and 2 in the police station who reported him the incident. Police recorded his statement. In his cross-examination he has stated clearly that P.W. 1 and 2 reported him about the incident at 3.30 4 P.M. There is nothing inconsistent in the statement of P.W. 4. 24. THE P.W 5 was the owner of the taxi no. WMT 1692. He has supported the prosecution case that the P.W. 3 was the driver of the taxi on 19.10.2003. The P.W. 6 supported the statement of P.W. 3 and 5 that on 19.10.2003 Jogendra reported him about the robbery. He has also supported the statement of the P.W. 3 that Jogendra had been to Shyampukur police station and he was intercepted by police. The P.W. 6 supported the statement of P.W. 3 that the taxi was taken to West Port police station and was seized in connection with the case together with other documents. He has also supported the statement of the P.W. 3 that Jogendra had been to Shyampukur police station and he was intercepted by police. The P.W. 6 supported the statement of P.W. 3 that the taxi was taken to West Port police station and was seized in connection with the case together with other documents. The P.W. 7 also supported the statement of P.W. 3,5 and 6. The P.W. 8 is the Judicial Magistrate who conducted the TIP of the appellants on 19.11.2003 in connection with WPPS case no. 167 of 2003. He identified that Ex. 5 i.e. the report of TIP. THE P.W. 8 has made it clear that the witnesses took part in the TIP could identify all the appellants in his presence. There is nothing in the evidence of P.W. 8 suggesting that the TIP was not conducted according to the procedure and that the suspects were shown to the witnesses prior to holding of the TIP. The P.W. 9 and P.W. 10 are the I.O. of the case. There evidence altogether corroborated the prosecution case entirely. 25. THE Ex. 5 makes it abundantly clear that the appellants were identified by the witness nos. 1,2 and 3 in the TIP. The seizure list i.e. Ex. 3/1 and Ex. 4/2 as well as Ex. 2, money receipt, altogether supported the prosecution case. 26. LEARNED Counsel appearing on behalf of the appellants contended that the learned Trial Court should not have recorded conviction on the basis of the report of the TIP only. It is admitted position that the appellants were not known to the witnesses no. 1,2 and 3 prior to the incident. In fact, no question was put to them in their cross-examination even in from of suggestion, to that effect. If so, the I.O. of the case rightly arranged for TIP of the persons arrested in connection with the alleged crime. The witnesses i.e. P.W. 1,2 and 3 were called on. They identified all the three miscreants with details of role played by each and every while the offence was committed. The P.W. 1,2 and 3 not only identified the appellants in the TIP but also identified them in Court in course of trial. The witnesses i.e. P.W. 1,2 and 3 were called on. They identified all the three miscreants with details of role played by each and every while the offence was committed. The P.W. 1,2 and 3 not only identified the appellants in the TIP but also identified them in Court in course of trial. Therefore, there can not be any room of doubt before the learned Trial Court that the appellants who were not known to the P.W. 1,2 and 3 have committed the offence because they were identified both in TIP and in course of trial by the ocular witnesses with details of role played by each of them. The learned Trial Court rightly accepted the Ex. 5 and believed the oral testimonies of the P.W. 1,2 and 3 who witnessed the entire incident. The fact that the P.W. 3 was driving the vehicle has been established. The fact that the P.W. 1 and 2 boarded on the taxi being no. WMT -1692 of 19.10.2003 in order to go to Matiabruze market has been established also. The fact that at Singarhati More when the speed of the taxi was slowed down, the appellant forcefully entered into the taxi, captured the driver's seat and robbed the P.W. 1 and 2 have also been established by cogent, reliable, trustworthy and consistent evidence of the P.W. 1,2 and 3. The seizure lists have also been proved, admitted into evidence and marked Ex. on behalf of the prosecution. The evidence of other witnesses corroborated the statements of P.W. 1,2 and 3 as well as 9 and 10. 27. IT has been argued on behalf of the appellant that no offending article or robbed article was recovered from the possession of the appellant. I do not find any substance in such a proposition. In a case like this when the miscreants were not arrested on spot read handed after the commission of offence, the possibility of recovery of robbed articles appears to be almost nil. 28. I find that the learned Court made no mistake in recording the conviction of the appellants for committing the offences under Sections 392 and 397 of IPC upon consideration of the facts and circumstances of the case as well as the evidence on record. I do not find any reason, whatsoever, to interfere in the judgment of conviction recorded by the learned Trial Court. I do not find any reason, whatsoever, to interfere in the judgment of conviction recorded by the learned Trial Court. It has been contended by the learned Counsel appearing on behalf of the appellants that the appellant Imran Khan is in custody since 7.10.2003 till this date in connection with this case. Appellant Hasan Jann was in custody till 28.7.2006. Considering the period of time the appellant spent in custody, a lenient view be taken. 29. I have considered the submission of the learned Counsel appearing for the appellants and found that the appellant Md. Imran Khan has already spent a considerable period of time, to be stated preciously, major portion of the substantive sentence behind the bars. Accordingly, I, while maintaining the order of conviction modify the sentence passed by the learned Trial Court in respect of the appellant Md. Imran Khan to the effect that he is to suffer R.I. for the period already spent in jail in connection with this case. 30. AS regards appellant Hasan Jann is concerned, I find that he was granted bail on 28.7.2006. He has not suffered major portion of the substantive sentence. However, in stead of directing him to undergo seven years R.I. as ordered by the learned Trial Court, he is to pay a fine of Rs. 5000/-, in default, to suffer R.I. for ten months. The appeals are disposed of by the judgment above. Later on : Urgent Photostat certified copy of the judgment, if applied for, be handed over to the parties on compliance of necessary formalities.