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2014 DIGILAW 1001 (CAL)

In Re: Karan Sinha v. State of West Bengal

2014-11-03

NISHITA MHATRE, SAMAPTI CHATTERJEE

body2014
Judgment Samapti Chatterjee, J. 1. These instant appeals are directed against the Judgment and Order of conviction passed in Sessions Trial being No. 1 (9) 1999 and Sessions Case being No. 43 of 1998 passed by the learned Additional Sessions Judge, Fast Track Court-IX, Bichar Bhawan, Calcutta on 19th May, 2006 holding the accused persons/appellants guilty of offence punishable under Section 396 of the Indian Penal Code and sentenced to suffer imprisonment for life and also to pay fine of Rs.1,000/- each in default to suffer imprisonment for one month. The convicts namely, Akhtar Ali and Karan Sinha are convicted and sentenced to rigorous imprisonment for a term of one year and also to pay fine of Rs.1,000/- each in default to suffer imprisonment for further period of one month for committing offence punishable under Section 25(1B) (a) of the Arms Act. The convict Karan Sinha is further sentenced to rigorous imprisonment for three years and also to pay fine of Rs.1,000/- in default to suffer imprisonment for further period of one month for committing offence under Section 27 of the Arms Act. 2. Put in a short frame, the prosecution case runs as under:- On 28.03.2005 one Debesh Chakraborty, aged about 58 years lodged a complaint in Muchipara Police Station to the effect that on 02.04.1998 around 12 noon when he was on duty in Central Bank of India (Bowbazar Branch) as security guard at the gate of the said bank he heard the sound of a shot and immediately became alert and he saw that a man came running to the bank gate and behind him 4/5 men came to the gate of the bank on the first floor and the first man grasped the collapsible gate but those 4/5 miscreants snatched a bag away from him and went down and that man fell in a bloodied state in front of the gate. He immediately shouted and warned everybody and switched on the siren of the bank. In those circumstances he could hear that there was an uproar below. Meanwhile some people (local) came and took away the wounded man and he recognized him. That man would frequently come to their bank for money transaction. His name is Gopal Tewari. The siren went on wailing and he saw out of the window below that one person is chasing the miscreants and shouting “dacoit, dacoit”. Meanwhile some people (local) came and took away the wounded man and he recognized him. That man would frequently come to their bank for money transaction. His name is Gopal Tewari. The siren went on wailing and he saw out of the window below that one person is chasing the miscreants and shouting “dacoit, dacoit”. He immediately entered the manager’s chamber and told the manager Sri Sumit Kumar Banerjee about the incident and the manager rang up the police and informed them. In the meantime he heard that a dacoit named Akhtar Ali @ Mohammed Wakil has been caught with a revolver and the bag with the looted cash. S.I Sadhan Das recorded the statement of Debesh Chakraborty, and treated the same as F.I.R of this case. Thereafter, S.I. Sadhan Das started investigation. Subsequently, S.I. M.K. Das of Detective Department, Kolkata Police came to Muchipara P.S. and informed S.I Sadhan Das that the said case had been taken over by the Anti Dacoity and Robbery Section, DD Kolkata Police, Lalbazar. Accordingly, he handed over the case diary to S.I. M.K. Das for further investigation of the case. During investigation S.I. M.K. Das arrested the accused persons and made seizure list, drew sketch map of the area and after completion of the investigation he submitted charge sheet against all the accused persons under Section 396 of the Indian Penal Code and 25 (1B) 9(a)/27 of the Arms Act on 23.06.1998 in the Court of the Ld. CMM, Calcutta. Thereafter trial started and after completion of trial the learned Additional Sessions Judge, Fast Track Court-IX convicted the appellants as aforesaid. 3. P.W.1 was Assistant Sub Inspector of the police and plan maker. 4. P.W.2 was the photographer. 5. P.W.3 was the defacto complainant and security guard of Central Bank of India Bowbazar. In his evidence he stated that on 2nd April 1998 when he was on duty from 10 P.M. to 5 P.M. at Bowbazar Central Bank of India at about 11:45 A.M./12 noon he heard a sound of firing. Hearing sound of firing he came to the main gate of the said bank on the first floor and he found a man coming from the ground floor towards the premises of the bank through the stair case with profusely bleeding injury and some 4/5 men were following that person behind him with pistol in their hand. Hearing sound of firing he came to the main gate of the said bank on the first floor and he found a man coming from the ground floor towards the premises of the bank through the stair case with profusely bleeding injury and some 4/5 men were following that person behind him with pistol in their hand. He also found bleeding on chest of that person. He further stated that the said person with severe injury was about to enter the bank premises and caught the collapsible gate by his left hand. Then those 4/5 persons chasing him got that person and snatched away a bag held in the right hand of that person. Thereafter those 4/5 men went down following the stair case. He further deposed that the colour of the bag was white. Immediately thereafter the injured person fell down and started vomiting blood. Seeing the condition of that person the P.W.1 closed the collapsible gate of the bank immediately and put padlock. He further deposed that he identified the injured person as Gopal Twari who used to come to the said bank for depositing money. Then he switched on the siren from the inside of the bank premises and had locked to the place where Gopal was lying with bleeding injuries but Gopal was not found there. Then he saw Gopal lying on the ground floor and some people are standing by his side. He further deposed that he found some persons surrounding Gopal and some persons chasing a man with shouting “Dakat, Dakat”. He further deposed that he saw some persons coming with a van rickshaw put Gopal Tewari in that van rickshaw and left the place. Seeing the incident he raised alarm and he also shouted mentioning “Dakat, Dakat”. He entered the room of manager and narrated the entire incident to him. Sometime after police came. He also narrated the incident to the police. Police Officer recorded his statement and read over the same to him. Subsequently on that date some customers of their bank were talking that one the dacoits was caught by the public inside the premises of Bank of Baroda of that locality and the name of that person was Akhtar Ali @ Md. Wakil. He further deposed that in that case he had occasion to go to Alipore Central Jail in connection with T.I Parade of accused persons. Wakil. He further deposed that in that case he had occasion to go to Alipore Central Jail in connection with T.I Parade of accused persons. In the T.I Parade he identified 2 persons namely Karan Sinha and Mahesh Shaw who died subsequently. He also identified the white bag (Mat. Exbt-III) which was in the hand of Gopal Tewari and subsequently found in the hand of accused person. In his Cross examination he stated that he reached the collapsible gate within 2/3 seconds after hearing the sound of firing. In his cross examination he further stated that within 20 seconds of locking the gate of the bank he saw that Gopal Tewari fell on the floor. He further deposed that police interrogated all the persons who are present at the bank premises and thereafter police interrogated him on the date of incident. He further stated in his cross examination that from the office record it is evident that he was on duty in the bank on 2nd April, 1998 when the occurrence took place. 6. P.W.4 was the post occurrence witness, owner of the Mahamaya Fish Traders of Sealdah Fish Market. In his evidence he stated that on the date of occurrence he was present at his fish trading business at Sealdah. He heard two sounds of bullets from the Central Bank of India Bhawanipur Branch. First sound of bullet he heard at about 11:30 A.M. or 11:45 A.M. and thereafter within a fraction of second he heard another sound of firing. He and other standing persons saw 4/5 persons running towards office of Central Bank of India following the stair case and he also saw those 4/5 persons were coming down within 3 to 4 minutes vacating the said stair case. All were having fire arms with them. When he and other persons were observing the situation from a distance of about 10 yards those 4/5 persons were found shouting that “Go away, otherwise we will shoot”. With those words those 4/5 persons fled away through B.B. Ganguly Street and he and other persons shouted “Dakat, Dakat”. He further deposed that Koley Market is opposite to Sealdah Market and those 4/5 miscreants went near Koley Market where there was a black colour Yamaha motor bike parked. With those words those 4/5 persons fled away through B.B. Ganguly Street and he and other persons shouted “Dakat, Dakat”. He further deposed that Koley Market is opposite to Sealdah Market and those 4/5 miscreants went near Koley Market where there was a black colour Yamaha motor bike parked. Three of miscreants tried to use that Yahama motor bike but two of them could leave that place on that black Yahama motor bike and other could not and the third man was found running towards Bank of Baroda and local people caught hold of him who had a bag in one hand and fire arm in other hand. He further deposed that he was also present being a local man when that person was caught. Other miscreants were found fleeing towards Sealdah Station and Sealdah flyover. The local people were about to assault that person caught by them but the Aratdar of Sealdah Fish Market did not allow the local people to assault that person. Within 5/7 minutes police came and Adhir Kumar Biswas, Secretary of the Sealdah Fish market was also with them. Police took that person inside the Bank of Baroda. P.W.4 and Adhir Kumar Biswas accompanied the police. He further deposed that Darwan of the Central Bank of India identified the man who was alone with the dacoits and snatched away the bag from Gopal Tewari. He further deposed that he came to know from the Darwan that Gopal Tewari was injured by a bullet shot and P.W.4 knew as he was an employee of Shankar Guin a Fish dealer of Sealdah Market. He further deposed that he did not put his signature on the notes found but Adhir Kumar Biswas put his signature on the label. The man caught by them with bag containing currency notes stated his name as Md. Wakil and he put his left thumb impression on the label. He identified the bundles of currency notes seized and labeled (marked as Exbt.3). He further deposed that fire arm found in the possession of the man caught by them was also seized and labeled by the police officer in their presence. The man from whom the fire arm was seized put his left thumb impression on the label. He and Adhir Biswas put their signature on the label. P.W.4 further identified the fire arm (Mat. Exbt.V). He identified the accused Akhtar Ali @ Md. The man from whom the fire arm was seized put his left thumb impression on the label. He and Adhir Biswas put their signature on the label. P.W.4 further identified the fire arm (Mat. Exbt.V). He identified the accused Akhtar Ali @ Md. Wakil in TI Parade. He also in T.I Parade identified the accused Mahes Shaw (since deceased). P.W.4 in his cross examination repeatedly stated that he knew what is pistol and what is revolver. On 2nd April, 1994 the man (Md. Wakil) who had a bag in one hand and a pistol in other hand was caught by them and Wakil was with them till arrival of police. 7. P.W.5 is also a fish dealer of Sealdah Fish Market stated in his evidence that on 2nd April, 1998 at about 12 noon or so he was talking with some workers standing on B.B. Ganguly Street near Sealdah Market gate and after a while he heard blowing of siren from Central Bank of India, Bowbazar Branch and hearing sound of siren he looked at Central Bank of India and found 4/5 persons with arms in hand coming from the gate of Central Bank of India, Bowbazar Branch towards B.B. Ganguly Street. Out of those 4/5 persons one person running towards Sealdah fly over and one person having a fire arm in his hand and white coloured bag in other hand was running towards Bank of Baroda through B.B. Ganguly Street. The P.W.5 along with others chased that person who had a fire arm and white coloured bag in his hand shouting “Dakat, Dakat”. Then local people chased that person and got hold of him near Bank of Baroda. The Darwan of the Central Bank of India identified the person. He narrated the incident on 2nd April, 1994 before the police. 8. P.W.6 is a fish dealer of Maa Annapurna Fish Company. He in his evidence stated that every day he received money from the fish agent and he used to send the said money to the bank for preparing draft. On the day of occurrence he also sent Gopal Tewari, his employee with money to the Central Bank of India, Bowbazar Branch for preparing draft. He further deposed that he heard sound of siren from Central Bank of India in Bowbazar. On the day of occurrence he also sent Gopal Tewari, his employee with money to the Central Bank of India, Bowbazar Branch for preparing draft. He further deposed that he heard sound of siren from Central Bank of India in Bowbazar. Suddenly he saw 5/6 persons coming out with arms from the gate of Central Bank of India shouting “Go away, go away, otherwise we will shoot”. Out of those 5/6 persons three were going towards the opposite side of the road where there was a motor bike. Two persons fled away on that motor bike but one could not. Another man was found running towards Bank of Baroda with a white bag made of cloth in his hand and P.W.5 along with others chased that person and the person with white bag was caught near the gate of Bank of Baroda by the local people. He reached there. Local people assaulted that person. He identified the bag which was given to Gopal Tewari with money for preparing a draft from the Central Bank of India. On that spot he also saw Adhir Biswas, Ramkrishna Mondal and many other persons of that market. Thereafter he went to the Central Bank and there he found Gopal was lying in a pool of blood. He took Gopal to NRS Hospital where Gopal died. He also identified the accused Md. Wakil @ Akhtar Ali in Court. In cross examination he stated that Madusu Rangababu, G. Subbaraju, V.S. N. Verma and C.H Venketsaraw who are of Andhra Pradesh have residence in Calcutta. They used to bring fish from Andhra Pradesh to Calcutta by lorry and sell the fish to them and others in Calcutta. They also used to collect money in morning from the fish dealer. In his cross examination he stated that he along with others caught hold of Wakil when he was fleeing away. He also identified Karan Sinha and Mahes Shaw (since deceased) but he did not describe their wearing apparels to the Investigating Officer. 9. P.W.7 was also a fish dealer of that market who saw 4/5 persons were trying to snatch away the bag from Gopal Tewari and within few seconds one of those persons fired at Gopal. In spite of that Gopal tried to proceed towards Central Bank of India office with the bag in his hand. 9. P.W.7 was also a fish dealer of that market who saw 4/5 persons were trying to snatch away the bag from Gopal Tewari and within few seconds one of those persons fired at Gopal. In spite of that Gopal tried to proceed towards Central Bank of India office with the bag in his hand. He further deposed that he saw 4/5 persons followed Gopal and within a minute those 4/5 persons were found running towards the ground floor with the bag in hand but all persons were having fire arms in their hands. He further deposed that Gopal Tewari was their man and he was sent to the Central Bank of India with that white bag. He also saw Gopal Tewari lying in a pool of blood on floor just below the stair case towards Central Bank of India. At that time Samar Guin and Robin Guin employers of Gopal Tewari arrived at that place. He with the help of Samar Guin and Robin Guin arranged a van rickshaw and took Gpoal to NRS Hospital for treatment. He identified Akhtar Ali in the Court who was caught by the local people. He also identified the accused Karan Sinha and Mahesh Shaw (since deceased) in Court. He also identified the photographs of Gopal Tewari (Mat Exbt.II). He also in his cross examination stated that he saw accused Md. Wakil on the road in front of Bank of Baroda. He further deposed that he heard the sound of bullet and he saw bullet was being fired and after that Gopal Tewari reached the first floor following the stair case. The miscreants followed Gopal Tewari. He saw everything as he was standing at the fish Arath of Anil Das. 10. P.W.8 was also a fish merchant/trader. He on the date of occurrence i.e. 2nd April. 1998 at about 10:30 A.M./12 noon when he was making payment to the labourer he saw 4/5 unknown persons in tussle with Gopal Tewari (man of their market) near Central bank of India. As he saw the miscreants at the time of incident therefore he identified accused Karan Sinha in TI Parade. 11. P.W.9 was a Coolie/labour of Sealdah fish market. He identified Zakir Hossain, Karan Sinha and Mahesh (since deceased) and he also identified accused Md. Wakil @ Akhtar Ali. He claimed before the Investigating Officer that he was eye witness to the occurrence. 11. P.W.9 was a Coolie/labour of Sealdah fish market. He identified Zakir Hossain, Karan Sinha and Mahesh (since deceased) and he also identified accused Md. Wakil @ Akhtar Ali. He claimed before the Investigating Officer that he was eye witness to the occurrence. He further deposed that the local people caught one miscreant who had a white bag in one hand. 12. P.W.10 was also a fish merchant. He identified miscreants Zakir and Mahesh (since deceased) and he also identified the white coloured bag (Mat Exbt.III). 13. P.W.11 was a shop owner of that area. On 2nd April 1998 he saw the incident. When he reached near the fish market he found 4/5 persons coming down from the fish market with revolver in their hands. At that time some persons were shouting “Dakat, Dakat”. 2 out of 4/5 persons crossed the road and fled away on a black coloured Yamaha motor cycle and one person tried to get on the motor cycle but could not succeed. He saw one person was apprehended by local people and he was then being assaulted. He also heard the sound of siren from Central Bank of India and many persons assembled there and police came there and rescued that man. He identified Mahesh (since deceased) and Karan Sinha. 14. P.W.12 Manager of the Central Bank of India in his evidence stated that he heard a sound of fire arms at that time there was a chaos between the staff and the customer who are inside the bank. Then Debesh Chakraborty, defacto complainant (P.W.1) guard of their bank came and asked him to inform the police station over telephone as some dacoity had already been committed in the bank. Said P.W.1 also switched on the siren bell. He tried to contact Muchipara Police Station over phone but he failed. After that P.W.12 looked through the window of the backside of his chamber and found a gathering near the stair case. Within half an hour police came to their bank and interrogated him. On 16th April 1998 police again came to their bank and gave requisition for seizing of the demand draft registered at that relevant time. As per requisition he produced the bank draft register to the police and he put his signature to the effect on 16th April, 1998 on the demand draft register from 14.02.1998to 16.04.1998. 15. On 16th April 1998 police again came to their bank and gave requisition for seizing of the demand draft registered at that relevant time. As per requisition he produced the bank draft register to the police and he put his signature to the effect on 16th April, 1998 on the demand draft register from 14.02.1998to 16.04.1998. 15. P.W.13 was the Brach Manager of the Bank of Baroda. 16. P.W.14 was the fish trader of the Sealdah fish market who in his deposition stated that he heard a siren of bank and heard a shout “Dakat, Dakat”. When he came out of his shop and reached the gate of the Central Bank of India and there he saw the body of Gopal Tewari with blood stained condition. He along with Shankar Guin took Gopal to NRS Hospital. Police examined him in the case at the hospital. He also signed the Inquest Report. 17. P.W.15 was the labourer of the Sealdah fish market who stated that about 4/5 cubits right of the Central bank of India a bullet was recovered from the road in front of the fish shop. The police took the same and kept in an envelop and took his signature over the envelop. He was the signatory of seizure list. 18. P.W.16 was the Magistrate who performed the TI Parade. TI Parade was held on 5th May 1998 and 21st May 1998 but incident occurred on 2nd April 1998. Among the witnesses the witness Debesh Chakraborty identified Karan Sinha and Mahesh Shaw (since deceased). Shankar Guin identified Mahesh and Karan Sinha. Witness Robin Guin identified Karan Sinha and Mahesh. Chunilal Bez identified Karan Sinha. Jiban Das identified Zakir Hossain, Mahesh and Karan Sinha. Witness Nana Goswami identified Mahesh and Karan Sinha. Md. Asgar identified Karan Sinha and Mahesh. Witness Ram Krishna Mandal identified Karan Sinha and Mahesh. Witness Sintu Das identified Karan Sinha. 19. P.W.17 was independent witness. Police called him and asked him to stand over there as the police personnel will search something. There police recovered one empty cartridge. Thereafter P.W.17 and other persons as per instruction of police signed over the paper. The said empty cartridge was kept in a bag. Label was prepared and P.W.17 signed there (Exbt.13/1) and empty cartridge (Mat. Exbt.VI). He also identified Karan Sinha in Court. 20. P.W.18 was tendered by the prosecution. 21. There police recovered one empty cartridge. Thereafter P.W.17 and other persons as per instruction of police signed over the paper. The said empty cartridge was kept in a bag. Label was prepared and P.W.17 signed there (Exbt.13/1) and empty cartridge (Mat. Exbt.VI). He also identified Karan Sinha in Court. 20. P.W.18 was tendered by the prosecution. 21. P.W.19 was the Manager of the Central Bank of India. 22. P.W.20 police personnel who as per instruction of the accused went in front of Matkhal Jute Mill near Puja Hotel. The accused person took the police personnel to a hut (Jhupri) near sub station. He brought one carry bag from the said Hut. He also brought one country made double barrel pipegun in that carry bag which was loaded with live cartridges. Two witnesses were taken from the Puja Hotel. The accused handed over the carry bag to the police in presence of P.W.20 as well as other witnesses. Then the Officer prepared the seizure list (Mat. Exbt.XIX). The said seized article was sealed and labeled. P.W.20 along with other witnesses signed on the label (Mat ExbtXX). Pipegun marked as Mat Exbt.V. 23. P.W.21 prepared Inquest Report and index. 24. P.W.23, 24, 25 26 all are fish trader. 25. P.W.27 Officer of the Forensic Research Laboratory, held post mortem examination over the dead body of Gopal Tewari. In his evidence he stated that one gun shot wound of entrance .6” x .4” with inverted and lacerated skin margin, without any abroad collar with burning and singeing and blackening placed obliquely over right side of lower part in front of chest, placed 3” to the right of midline and 48” above right heel. 26. One gun shot wound of entrance .4” x.3” with inverted lacerated skin margin, without much of abrated collar but with evidence of burning, singeing, tattooing and blackening placed obliquely over lower part of right side of front of chest being placed 3 ½” lateral to midline and 48 ½” above heel was also found. 27. He opined that the injuries no.1 and 2 singly and/or collectively is/are sufficient to cause death in ordinary course. He further stated that from his experience of 32 years in forensic medicine he had come across many cases where the person can do a volitional act including running chasing the assailants after receiving such fatal injury. 27. He opined that the injuries no.1 and 2 singly and/or collectively is/are sufficient to cause death in ordinary course. He further stated that from his experience of 32 years in forensic medicine he had come across many cases where the person can do a volitional act including running chasing the assailants after receiving such fatal injury. He further deposed that in the present case from his experience he could say that it was possible for the victim to climb down the stair case even after receiving the injuries found by him. He further stated that both injuries noticed by him were bleeding injuries. 28. P.W.28 ballistic doctor examined the bullets and double barrel fire arm and prepared the report. He opined that from examination it was revealed that the improvised fire arm marked as Exbt.1 as well as the improvised double barrel fire arm marked as Exbt.4 were used for firing sometimes before those were received in their laboratory. It was further revealed that both the fire arms were in working condition. The improvised cartridge marked as Exbt.2 was found to be live on test. The fired case marked Exbt.3 was fired from the left barrel of the double barrel improvised pistol marked as Exbt.4. The fired bullets marked as Exbt.8 and Exbt.8(1) were fired from the right and left barrel respectively of the double barrel improvised pistol Exbt.4. The misfired cartridge marked Exbt.5 was also found to be live on test.. 29. P.W.29 who initially investigated the case stated that being directed by the Additional O/C of Muchipara Police Station he went to the scene of offence and he came to know that one Gopal Tewari employee of Shankar Guin of Sealdah Fish market was shot by 4/5 unknown persons at the stair case of Central Bank of India at B.B. Ganguly Street while he was taking the money to deposit in the said bank. He also came to know that one of the dacoits was apprehended by the public and detained in the said bank of Baroda at B.B Ganguly Street. 30. He also came to know that one of the dacoits was apprehended by the public and detained in the said bank of Baroda at B.B Ganguly Street. 30. P.W.30 stated that he went to the main gate of the building on the 1st floor and met one person who introduced himself as Sri Debesh Chakraborty, P.W.1 the defacto Complainant and Security Guard of the said Branch of Central bank of India who narrated that he saw the entire incident and would give full description of the same. Thereafter he described the incident and the P.W.30 recorded the statement. After recording his statement he (P.W.30) read over the same to the Debesh Chakraborty and after being satisfied Debesh Chakraborty put his signature thereon which is the formal FIR (Exbt. 2/2). Thereafter he examined Mr. Sumit Banerjee the Branch Manager of the Central Bank of India, Sri Nikhil Banerjee and photographer of the Detective Department Lalbazar under Section 161 of the Cr.P.C. Thereafter he came back to the Central Bank of India accompanied by said Debesh Chakraborty who identified one of the dacoits who was caught by the people of the area and kept in the bank under custody of the police force. The apprehended person disclosed his name as Md. Wakil @ Akhtar Ali. Subsequently he searched the said Md. Wakil and recovered one country made revolver from the left side of that person. He also recovered one white coloured bag from that person. Upon search of the said white bag the P.W.30 recovered 16 bundles of 100 rupee currency notes, two bundles of 50 rupee currency notes and one bundle of 10 rupee currency notes. Thereafter the P.W.30 prepared seizure list and obtained signature of the Chunilal Bez and Adhir Kumar Biswas as seizure list witnesses. He also obtained left thumb impression of the accused Md. Wakil in the seizure list. Thereafter he arrested Md. Wakil and recorded the statement of two seizure list witnesses namely Chunilal Bez and Adhir Kumar Biswas. He also recorded the statement of Manoranjan Mondal Brach Manager of Bank of Baroda and General Manager of the said bank. He also collected the blood sample from the surface in front of entry gate in the ground floor of the bank in presence of two employees of Central Bank of India. He also recorded the statement of Manoranjan Mondal Brach Manager of Bank of Baroda and General Manager of the said bank. He also collected the blood sample from the surface in front of entry gate in the ground floor of the bank in presence of two employees of Central Bank of India. He prepared the seizure list in respect of the said collection and obtained signature of the two witnesses. Thereafter he recorded the statement of two witnesses namely Amit Sarkar and Amit Balla. Thereafter on the basis of death certificate of Gopal Tewari, seizure list and also statement of Debesh Chakraborty he started Muchipara P.S. Case No.66 dated 02.04.1998 under Section 396 of the IPC . 31. P.W.31 the Investigating Officer took up investigation of Muchipara P.S. Case No.66 dated 02.04.1998. Thereafter being pointed out by source he arrested one Karan Sinha and Mahesh Shaw (since deceased) Zakir Hossain. During interrogation accused Zakir Hossain made a statement and pointed out one black Yamaha Motorbike being no. WP12/1421. That motorbike was perked near Puja Hotel on the eastern side footpath of the B.T. Road. According to his statement the said motor bike (Exbt.28) was parked there for use of dacoity, sketch map which was recovered from the possession of the accused persons (Mat. Exbt.VIII). Seizure list was made in presence of witnesses namely Rabindra Mahato and Pervez Sharma (marked as Exbt.29). Above two witnesses and also accused Zakir Hossain put his signature on the said seizure list in his presence. He recorded the statement of Robindra Mahato and Pervez Sharma under Secction 161 of the Cr.P.C,. In course of interrogation accused Karan Sinha made a statement inter alia that after the incident he dropped the cartridges case of double barrel fire arm on the passage of fish market and the fire arm on the road. In course of his statement he stated that if he was taken to Sealdah fish market he would lead the police party for the recovery of cartridges case and could identify the same. The P.W.31 recorded the statement of accused Karan Sinha and explained the same to him (Exbt.31). In course of his statement he stated that if he was taken to Sealdah fish market he would lead the police party for the recovery of cartridges case and could identify the same. The P.W.31 recorded the statement of accused Karan Sinha and explained the same to him (Exbt.31). As per Karan Sinha’s statement the P.W.31 reached the Sealdah Fish market and conducted the search in the passage of fish market in presence of two witnesses namely Raju Sharma and Lalan Paswan and in course of search he recovered one empty cartridges case of a fire bullet in front of the shop of M/s Kantoo Brothers. He examined the said empty cartridges case and seized the same (Exbt.11/2) and labeled and sealed the same. Witnesses and the accused put their signature on the label and also on the packet. He again interrogated accused Karan Sinha inside the office. During interrogation accused Karan Sinha stated that he was agreeable to lead the police person to the place where he had kept the fire arms. Thereafter being led by accused Karan Sinha on 3rd April 1998 P.W.31 along with S.I Atanu Ghosal and accused Karan Sinha went to an abandoned ‘Jhupri’ (Hut) beside Puja Hotel at B.T. Road. Thereafter accused Karan Sinha entered inside the said Jhuhpri and brought one plastic packet containing one double barrel double triggered fire arm loaded with one around cartridge. The P.W.31 seized the said fire arm in presence of witnesses under proper seizure list and obtained the signature of witnesses namely Asgar Hossain and Nabakumar Chandra and also the signature of the accused person (Exbt. 19/2) and fire arm (Mat Exbt.V) and the seized motor bike bearing no. WB12/1421 produced in Court (marked as Mat Exbt. IX). Thereafter on 23.06.1998 he submitted charge-sheet against all accused persons under Section 396 IPC and 25 (IB) (a) and 27 of the Arms Act. 32. Kaji Safiullah learned Advocate appearing for the appellants no. 1 and 2 namely Akhtar Ali @ Md. Wakil and Karan Sinha submitted that FIR was lodged after the statement taken under Section 161 of the Cr.P.C. In the FIR there is no whisper regarding finding of double barrel gun. 33. 32. Kaji Safiullah learned Advocate appearing for the appellants no. 1 and 2 namely Akhtar Ali @ Md. Wakil and Karan Sinha submitted that FIR was lodged after the statement taken under Section 161 of the Cr.P.C. In the FIR there is no whisper regarding finding of double barrel gun. 33. He further contended that P.W.17 stated that he recovered one empty bullet cap in the packet of the accused Karan Sinha and also recovered one cartridge on fish market and fire arms on the road near Sealdah Fish Market which in his version cannot be believed. 34. He further submitted that investigation as started prior to recording statement of Security Guard Debesh Chakraborty which is not at all permissible. Without recording the statement in FIR no case can be initiated but here case was initiated first thereafter FIR was lodged which is not permissible. In support of his contention he relied on one Supreme Court decision reported in 1995 C. Cr.LJ Page 2665 Paragraph 13 and 14 (Ranbir Yadav vs State of Bihar)) where it is held that the investigation started and thereafter FIR was recorded is not permissible. 35. Mr. Safiullah further contended that in the case of dacoity there must be presence of 5 persons or above but not 4/5 persons but it is evident from the records that in the present case almost all the PWs stated that there were 4/5 miscreants which does not attract Section 396 of the Indian Penal Code. 36. Mr. Safiullah further contended that evidence in statement under Section 313 Cr.P.C in question No.4, 5, 13, 14, 15, 16, 18 the prosecution witnesses stated that they saw 4/5 miscreants not 5/6. 37. He further contended that the prosecution failed to prove that the accused persons were possessing to the said property after committing so called dacoity in the scene of offence on that very date. No question of the statement under Section 313 Cr.P.C was proved that the bag which was recovered from the Akhtar Ali @ Md. Wakil was the property of docoity. 38. He further stated that sanction obtained by the prosecution for carrying on inquiry under Arms Act was not properly done as per law. 39. He further contended that Karan Sinha being the accused cannot be asked to be a witness in the seizure list. Wakil was the property of docoity. 38. He further stated that sanction obtained by the prosecution for carrying on inquiry under Arms Act was not properly done as per law. 39. He further contended that Karan Sinha being the accused cannot be asked to be a witness in the seizure list. Furthermore, it is not humanly possible by accused Karan Sinha to be present at a time on 02.04.1998 at Calcutta and on the very next date on 03.04.1998 at Naoapara at night because the distance from Calcutta to Naoapara is quite far. Police at the instance of accused Karan Sinha recovered so may things from Jhupri at Naoapara and at the same time Sealdah Market which cannot be accepted by any ordinary prudent person because as per the prosecution’s version double barrel gun was recovered from Sealdah and Naoapara also. 40. He further contended that TI Parade could not be held in open market. It should be held with proper caution. In the present case in the TI Parade it is stated that there were 30 people present and the accused Karan Sinha was brought from Noapara and TI Parade was held in open market at Sealdah but not in jail or in police custody which as per Mr. Safiulla was done in an irregular, illegal and improper manner by the prosecution. 41. He further contended that the prosecution failed to prove the case of dacoity. 42. He also relied on one Apex Court decision reported in (2014) 1 SCC (Cri) Page 677 Para 20 and 21 (Sujit Biswas vs State of Assam) where the Hon’ble Supreme Court held that in a criminal trial the purpose of examining the accused persons under Section 313 of the Cr.P.C is to meet the requirements of principle of natural justice. The circumstances which are not put to the accused in his examination under Section 313 Cr.P.C that cannot be used against him and must be excluded from consideration. 43. Mr. Sanyal, learned Advocate appearing for the accused Zakir Hossain being CRA No.481 of 1996 submitted that P.W.16 in his deposition stated that 8 persons were present in TI Parade but only one person the P.W.9 Jiban Das identified accused Zakir Hossain. P.W.10 identify the accused Zakir Hossain in court after three years but failed to identify the same accused in TI Parade held on 5th May 1998 and 21st May 1998. P.W.10 identify the accused Zakir Hossain in court after three years but failed to identify the same accused in TI Parade held on 5th May 1998 and 21st May 1998. P.W.4 and P.W.8 also failed to identify Zakir Hossain. 44. He further contended that prosecution did not disclose their source in the present case. In case of Zakir Hossain only Yamaha motorbile (black coloured) was recovered. Zakir was not the owner of the said motor bile. 45. He further contended that P.W.6 also stated regarding motor bike but did not disclose the colour and the name of the motor bike. Not a single witness identified the motor bike in Court. In support of his contention Mr. Sanyal relied on one Supreme Court decision reported in AIR 1981 SC Page 1392 Para 2 and 7 (Wakil Singh and others vs. State of Bihar) where the Hon’ble Supreme Court held that one witness who identified dacoits after certain days from TI Parade then the conviction by the prosecution only on the basis of identification by single witness cannot be justified. He also relied on one Supreme Court decision reported in AIR 1970 SC Page 1321 Paragraph 7 (Budhsen and another vs. State of U.P) where the Hon’ble Supreme Court held that the purpose of identification parade by the Magistrate holding them are expected to take all possible precautions to eliminate any suspicion of inference and to reduce the chance of testimonial error. The Magistrate should also keep in mind two conditions that the life of the accused may depend on their vigilance and caution and that justice should be done in the identification. 46. Mr. Sanyal further submitted that the seizure list witnesses were not examined by the prosecution, they were only summoned. 47. Mr. Manjit Singh, appearing for the State submitted that the TI Parade was absolutely done within time. There were no delay on the part of the Investigating agency. 48. He further contended that the purpose of TI Parade is to help the investigating agency for going to the proper direction. 49. Mr. Singh further pointed out that the accused could have stated that they were identified prior to holding of TI Parade i.e. on 5th May, 1998 and 21st May, 1998. But in examination under Section 313 Cr.P.C none of the accused mentioned anything in respect of their identification. 49. Mr. Singh further pointed out that the accused could have stated that they were identified prior to holding of TI Parade i.e. on 5th May, 1998 and 21st May, 1998. But in examination under Section 313 Cr.P.C none of the accused mentioned anything in respect of their identification. In support of his contention he relied on one Supreme Court decision reported in 2012 SCC 6 Page 174 Para 45 and 46 (Munna Kumar Upadhyaya @ Munna Upadhyaya vs State of A.P. Tr. Pub. Prosecutor) where the Hon’ble Supreme Court held that there was some delay in holding TI Parade but the delay cannot be fatal to the validity of holding an identification parade. The purpose of the identification parade is to provide corroborative evidence and is more confirmatory in its nature. 50. He also relied on an Apex Court decision reported in (2011) 3 SCC Page 654 Para 46 and 47 (Sheo Shankar Singh vs. State of Jharkhand and another) where it was held that it is well settled that identification of the accused in the Court by the witnesses constitutes substantive evidence in a case although any such identification at the trial may more often than not appear to be evidence of a weak character. 51. He also relied on one Supreme Court decision reported in (2000) 1 Crime (SC) Page 1 Para 22 (State of Maharashtra vs. Suresh) to contend that identification parade are not primarily meant for the Court. They are meant for the investigation purpose. The object of conducting the Test Identification Parade is two fold. First is to enable the witnesses to satisfy himself that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. The second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. 52. Mr. First is to enable the witnesses to satisfy himself that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. The second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. 52. Mr. Singh also relied on one Supreme Court decision reported in AIR 2003 (SC) Page 1596 (Anil Kumar vs. State of U.P) and reliance was also placed upon the case reported in AIR 1987 (SC) Page 1 (Shiv Charan vs. State of Haryana) where it is observed by the Supreme Court that all 4 dacoits were convicted by the learned Trial Court and they are serving out their sentence of imprisonment for life on conviction under Section 395 and 396 of the Indian Penal Code. Conviction of the appellants based on the identification made by the one prosecution witness had been accepted by the Trial Court and thereafter by the High Court and therefore, the Supreme Court did not find any reason to take different decision. 53. Mr. Singh further contended that if the case does not come under Section 396 of the Indian Penal Code then it should come under Section 394 of the Indian Penal Code punishable life imprisonment. Reliance was also placed in support of his submission on one Supreme Court decision reported in 1969 (3) SCC Page. 727 (Chottan Mahton and others vs. State of Bihar). In that case 16 accused persons committed dacoity in the house of Budhan. Out of those 16 accused persons 12 were acquitted by the Trial Court and 4 other were convicted which was affirmed by High Court. Against that they preferred appeal before the Hon’ble Supreme Court observed that “……..If this finding is accepted conviction under Section 396 was not wrong. But as there is no such finding by the High Court we are converting the conviction to one under Section 394 of the Indian Penal Code.” 54. On a close and critical analysis of the evidence both oral as well as documentary with meticulous care we find that Formal FIR was recorded soon after the incident on 02.04.1998 at about 12:05 P.M. No delay was there. It was not that Officer first recorded statement and thereafter formal FIR was registered. 55. On a close and critical analysis of the evidence both oral as well as documentary with meticulous care we find that Formal FIR was recorded soon after the incident on 02.04.1998 at about 12:05 P.M. No delay was there. It was not that Officer first recorded statement and thereafter formal FIR was registered. 55. The Charge-sheet mentions the names of the appellants and charges them for having committed the crime along with other unknown persons. We also find from the testimonies of eye witnesses that all of them stated that 4/5 persons were there. No cross examination was made on this point either to the P.W.4 and 5 or other witnesses to the effect that there were less than 5 persons involved in the said crime. It is evident from the testimonies of those witnesses that minimum five persons were involved in the said crime on 02.04.1998. 56. We also find that these appellants never challenged the charges before the Trial Court. 57. We also see that it is a settled principle of law that the holding of TI Parade is to assist the investigating agency for the purpose of going to the proper destination. A few days delay for holding TI Parade would not vitiate the entire investigation proceedings. 58. We also find that double barrel gun recovered from the accused Karan Sinha matched with the bullets brought from the body of deceased Gopal Tewari in forensic laboratory test. The autopsy surgeon P.W.27 in his evidence opined that injury nos 1 and 2 singly and/or collectively were sufficient to cause death in ordinary course. 59. We Find from the evidence of P.W.31 Investigating Officer that in course of interrogation accused Karan Sinha made a statement that after the incident he dropped the empty case double barrel fire arm on the passage of the fish market and the fire arm on the road near fish market. He also stated that accused Karan Sinha led the police personnel for the recovery of the cartridge case and would identify the same. Thereafter being led by the accused Karan Singh P.W.31 conducted search in the passage of fish market in presence of two witnesses namely Raju Sharma and Lalan and in course of search recovered one empty cartridge case of a fire bullet. 60. We also find that black motor bike was produced in Court which was used for committing dacoity. 61. Thereafter being led by the accused Karan Singh P.W.31 conducted search in the passage of fish market in presence of two witnesses namely Raju Sharma and Lalan and in course of search recovered one empty cartridge case of a fire bullet. 60. We also find that black motor bike was produced in Court which was used for committing dacoity. 61. We find that the property of the dacoity was recovered from the white bag which was in the possession of Akhtar Ali @ Md. Wakil wherefrom the currencies were recovered. 62. The sum total of the forgoing discussion is that the Trial Court has properly appreciated the evidence on record and has rightly held the appellants guilty. 63. We do not find any merit in these appeals. They deserve no interference. 64. These appeals, thus fail and stand dismissed. 65. The office is directed to send the Lower Court Records at once.