JUDGMENT : Joymalya Bagchi, J. 1. The appeal is directed against the judgment and order dated April 5, 2014 passed by the Learned Additional Sessions Judge, Fast Track Court, Chandernagore, Hooghly convicting the appellants for commission of offence punishable under Section 395 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for 7 years and to pay a fine of Rs. 10,000/- each, in default to suffer simple imprisonment for 5 months and also convicting the appellant No. 1 for commission of offence punishable under section 25 of the Arms Act and sentencing him to suffer imprisonment for 3 years and to pay a fine of Rs. 5,000/- each, in default to suffer simple imprisonment for 5 months, both the sentences to run concurrently. 2. Prosecution case, as alleged, against the appellants is to the effect that on 18.01.2013 one Deb Raj Shaw, P.W. 1, an employee of M/s. Dig Brothers was entrusted a sum of Rs. 2,02,000/- on behalf of his employer and was proceeding to United Bank of India Bhadreswar Branch to deposit the said sum of money. Suddenly three persons accosted and assaulted him and snatched away the bag containing the cash. Seeing the incident, the local people chased the miscreants. Other two miscreants were standing with fire arms. The miscreants fired bullets when the local people were chasing them. They also hurled bomb and as a result one person namely Samir Das (P.W. 9) was injured. After chasing, three miscreants were apprehended and two fled away. 3. On the written information of P.W. 1, Bhadreswar P.S. case No. 29/13 dated 18.1.2013 under section 395/397 IPC and under section 25 and 27 of the Arms Act and 9(b)(II) of the Indian Explosives Act were registered for investigation. In the course of investigation, on 19.1.2013 appellant No. 1, one Durga Bansfore and Chotka Bansfore were arrested and produced before the Magistrate. Investigating Officer also informed the Magistrate that the appellant Nos. 2 and 3 were admitted in the district hospital, Hooghly and were subsequently produced before the said Magistrate on 22.01.2013. Upon their production, appellant No. 2 was taken in the police custody and recovery was made in pursuant to his statement. 4. In conclusion of investigation, charge sheet was filed against the appellants and other accused persons under section 395/397 and 412 of the IPC and 25, 27 and 35 of the Arms Act. Upon their production, appellant No. 2 was taken in the police custody and recovery was made in pursuant to his statement. 4. In conclusion of investigation, charge sheet was filed against the appellants and other accused persons under section 395/397 and 412 of the IPC and 25, 27 and 35 of the Arms Act. 5. In the course of trial, the prosecution examined 13 witnesses to establish its case and exhibited number of documents including a number of material exhibits e.g. a gray bag is marked as Mat. Ext. 1, Nylon Bag-Mat. Ext. II, two pipe guns-Mat. Ext. III, & Mat. Ext. III/A and ammunitions marked as Mat. Ext. IV, Mat. Ext. IV/A and Mat. Ext. IV/B. 6. The defence of the appellants and other accused persons were one innocence and false implication. 7. In conclusion of trial, the trial court by judgment and order dated 5.4.2014 convicted and sentenced all the appellants under section 395 of the IPC and appellant No. 1 under section 25 of the Arms Act. Appellant Nos. 2 and 3 were, however, acquitted of the charges under section 25 of the Arms Act levelled against them. Other accused persons were acquitted of all the charges levelled against them. 8. Mr. Chatterjee, learned advocate for the appellant Nos. 1 and 2 submits that his clients were not identified by the de-facto complainant or other witnesses in the instant case. They have only been identified by the police witness in Court and, therefore, the prosecution case is liable to be disbelieved. 9. Ms. Sinha, learned advocate for the appellant No. 3 adopts the arguments of Mr. Chatterjee and in addition to that submits that apprehension of her clients from the place of occurrence has not been proved beyond reasonable doubt. 10. Mr. Ayan Basu, learned advocate appearing for the State, on the other hand, submits that evidence on record clearly shows that the miscreants had come in a body and snatched away the bag from the de-facto complainant (P.W. 1). Pursuant to the statement of appellant No. 2, the said bag had been recovered. It is also submitted that the appellant No. 1 was arrested from the spot after being chased by local people. Hence, the appeal is liable to be dismissed. 11. Let me examine rival versions in the light of the evidence on record. 12. P.W. 1 is the de-facto complainant in the instant case. It is also submitted that the appellant No. 1 was arrested from the spot after being chased by local people. Hence, the appeal is liable to be dismissed. 11. Let me examine rival versions in the light of the evidence on record. 12. P.W. 1 is the de-facto complainant in the instant case. He deposed that he was working under Ashok Dig and Sanjib Dig. The name of their shop was Dig Brothers situated at station Bazar. He used to deposit money on behalf of the owners in the United Bank of India. On 17.1.2013 at abut 12.30 p.m. he went to deposit Rs. 2,02,000/- in the said bank. The money was in the bag. Colour of the bag may be green. He was waiting with the said money in a auto rickshaw near Bhadreswar station. Suddenly the miscreants started assaulting him and snatched away the bag. He identified the miscreants in jail but was unable to identify the appellants in court. In cross-examination, he stated that he identified the persons as per instruction of the police. 13. P.W. 2, Susanta Kr. Malik deposed that P.W. 1 is an employee of the said shop. He had written the complaint as per his instruction. After writing, contents of the complaint was read over to P.W. 1 and thereafter P.W. 1 put his signature on the complaint. 14. P.W. 3, Uttam Banik & P.W. 6 Biplab Roy were tendered for cross-examination. 15. P.W. 4, Gouranga Sarkar deposed that he came to know from local people that some miscreants had snatched away more than lakh rupees from a person from the auto stand at Bhadreswar station. 16. P.W. 5, Jhulan Biswas is an auto rickshaw driver. He deposed that on 18.1.2013 he was waiting for hire with his auto at Bhadreswar station. One passenger was sitting inside the auto. At about 12.30 p.m., suddenly 5 to 6 miscreants came to his auto and snatched the bag from the said person and fled away. Local people chased them. They hurled bomb. As a result a person was injured. He however, could not identify the appellants. 17. P.W. 7, Ashok Kr. Dig is a dealer of cement having a shop at Bhadreswar station bazar who deposed that P.W. 1 is his employee. On 18.01.2013 he sent P.W. 1 to United Bank of India to deposit a sum of Rs. 2,02,000/-. As a result a person was injured. He however, could not identify the appellants. 17. P.W. 7, Ashok Kr. Dig is a dealer of cement having a shop at Bhadreswar station bazar who deposed that P.W. 1 is his employee. On 18.01.2013 he sent P.W. 1 to United Bank of India to deposit a sum of Rs. 2,02,000/-. When PW 1 was waiting at the station road for an auto rickshaw, some miscreants snatched the money from his possession and fled away. They used fire arms. Local people apprehended some miscreants and handed them over to the police. He came to know that one person was injured due to hurling of bomb. One grey and a nylon bag were shown to the witness. He stated that money was kept in the grey bag. The bags were marked as Mat. Ext. I and Mat. Ext. II. In cross-examination, he admitted that same type of bags were available in the market. There are no special mark in the bags. There is no document to show that PW 1 is his employee. 18. P.W. 8, Sarbaranjan Banerjee is an employee of P.W. 7. He deposed that P.W. 7 told him about the incident. In cross-examination, he stated that there is no document to show PW 1 was the employee of PW 7. 19. P.W. 9, Samir Das is a resident of Santipali of Bhadreswar police station. He deposed that there is an auto stand near Bhadreswar station. One year back at about 1 p.m. he was talking with his friend near his house. Some people were chasing some persons in the nearby road. Suddenly, due to bomb blast he sustained injury on his right leg. He was treated at Chandannagore hospital. He could not identify the accused persons. 20. P.W. 10, Ajay Kumar Majhi, was posted at Bhadreswar P.S. on 18.01.13. On that date he along with S.I. Arnab Ganguly and Constable Ramen Ghosh went to Gourhati beside G.T. Road. Some people were chasing five miscreants and they also chased the miscreants. Three persons were apprehended but others were fled away. From the apprehended miscreants two loaded pipe guns and ammunitions were recovered. The arms and ammunitions were seized under a seizure list (Ext. 4). The articles were labelled. They were signed by the police officers as well as the accused persons. He proved the labels (Ext. 5 series). Three persons were apprehended but others were fled away. From the apprehended miscreants two loaded pipe guns and ammunitions were recovered. The arms and ammunitions were seized under a seizure list (Ext. 4). The articles were labelled. They were signed by the police officers as well as the accused persons. He proved the labels (Ext. 5 series). The accused persons were also put their signatures/L.T.I. on it. He identified the two pipe guns as well as the three ammunitions in Court (Mat. Ext. III, III/A & Mat. Ext. IV, IV/A & IV/B). 21. In cross-examination, he stated after receiving information they rushed towards G.T. Road from police station in Tata Sumo. The accused persons were apprehended 100 feet away from Gourhati Ghat. There are many shops at the spot. Many people were present. They requested to local people to sign on the seizure list but they refused. 22. P.W. 11, Ramen Chandra Ghosh, was a constable attached to Bhadreswar P.S. on 18.01.2013. On that day, he along with S.I. Arnab Ganguly, A.S.I. Ajoy Majhi and Constable Dayalhari Pakre went to Gourhati. People were chasing miscreants shouting 'chor chor'. They apprehended five miscreants. One loaded pipe gun was found from Md. Sahajahad. Ammunitions were found from the possession of Durga Bansfore and one pipe gun was found from the possession of Chotka Bansfore. He identified the accused persons in Court. He identified the signature on the seizure list. He also identified the materials exhibits. 23. P.W. 12, Arnab Ganguly, was S.I. of police who was posted at Bhadreswar P.S. on 18.01.13. He deposed that on that date he along with P.W. 10 and P.W. 11 went towards Angus Jute mill. Near Gourhatighat they met S.I. Anuj Mukherjee and went towards Gourhati. They apprehended three accused persons. One loaded pipe gun was found from the possession of one Bansfore and one ammunition was found from the possession of one Chotka. One loaded pipe gun was also found from the possession of Sahajahad. A seizure list was prepared. He put his signature (Ext. 4/2). Labels were prepared. He proved the signature on the labels (Ext. 7 series). 24. P.W. 13, Anuj Kumar Majhi, was also attached to Bhadreswar P.S. as S.I. of Police. On 18.1.13 he received a complaint from Debraj Shaw. He made an endorsement on the written complaint (Ext. 1/1) and drew up formal F.I.R. (Ext. 8). 4/2). Labels were prepared. He proved the signature on the labels (Ext. 7 series). 24. P.W. 13, Anuj Kumar Majhi, was also attached to Bhadreswar P.S. as S.I. of Police. On 18.1.13 he received a complaint from Debraj Shaw. He made an endorsement on the written complaint (Ext. 1/1) and drew up formal F.I.R. (Ext. 8). During investigation, he visited the place of occurrence and prepared the sketch map with index (Ext. 9 & 9/1). He came to know that some persons of the locality apprehended two miscreants namely Satyanarayan Rajbhar and Uttam Dey. They were injured and sent to the hospital. He examined witnesses. He seized arms and ammunitions from Mr. Sahajad Ali, Durga Bansfore and Chotka Bansfore. He prepared a seizure list and labels. He proved the seizure list (Ext. 4/3). He proved the labels. On the statement of Satyanarayan Rajbhar, other accused persons were arrested. From the house of Rabi Shaw one motor cycle and two bags were recovered. Those articles were seized under a seizure list (Ext. 11). Seized arms and ammunitions were sent for expert opinion. He obtained the expert opinion (Ext. 13). Test Identification Parade of Durga Bansfore and Chotka Bansfore and Sahajahad were also conducted (Ext. 2). P.W. 1 identified Durga Bansfore and Chotka Bansfore. He collected injury report of Samir Das, (P.W. 9),(Ext. 3). He identified the two bags (Mat. I & II). He obtained sanction letter (Ext. 14). After completion of investigation he submitted charge sheet. 25. The prosecution case as appearing from the aforesaid evidence on record is to the effect that on 18.01.2013 at about 12.45 hrs. P.W. 1, an employee of Dig Brothers, was going to the bank to deposit a sum of Rs. 2,02,000/- which was kept in a green bag. On the way, some miscreants assaulted him and snatched away the bag. Evidence has also come on record that local people chased the miscreants and some of the miscreants were apprehended. One pipe gun was recovered from the possession of appellant No. 1 & Chotka Bansfore and ammunition was recovered from the possession of Durga Bansfore. It is also alleged that appellant Nos. 2 and 3 were apprehended from the spot and were admitted in hospital. Subsequently, on the statement of appellant No. 2 two bags and a motor cycle were covered from the house of one Rabi Shaw and were seized under a seizure list. It is also alleged that appellant Nos. 2 and 3 were apprehended from the spot and were admitted in hospital. Subsequently, on the statement of appellant No. 2 two bags and a motor cycle were covered from the house of one Rabi Shaw and were seized under a seizure list. None of the independent witnesses including the victim P.W. 1, auto driver P.W. 5 or injured witness P.W. 9 have identified the appellants in Court. It has been argued that P.W. 1 had identified the appellant No. 1 and Durga Bansfore in the course of test identification parade. In view of the fact that he had failed to identify the accused persons in Court, identification in the course of TIP which is not a substantive piece of evidence loses all its significance. Only evidence on the strength of which the prosecution has based its case is that all the police witnesses, namely, P.W. 10 to 13 stated that on arriving at the place of occurrence they found local people were chasing the miscreants and had apprehended them. With regard to the number of miscreants who were apprehended at the place of occurrence there is some controversy. While P.W. 10, 12 and 13 stated three miscreants including appellant No. 1 were apprehended from the spot, P.W. 11 stated that five miscreants including the appellants were apprehended from the spot. Hence, the version to the official witnesses are contradictory to each other as to the number of persons who were apprehended from the place of occurrence. Moreover, mere apprehension some persons near the place of occurrence by itself would not prove their complicity with the offence of dacoity itself. All witnesses including the victim (PW 1) who claimed to have been robbed failed to identify the appellants in Court. That apart, no part of the stolen booty was recovered from the possession of the appellants. One gray bag and a nylon bag were recovered from the possession of one Rabi Shaw pursuant to the statement of appellant No. 2. However, the said bags have not been identified by P.W. 1. On the other hand, P.W. 1 deposed that the colour of the bag in which he was carrying cash was most probably green whereas the colour of the bag which was seized is gray in colour. However, the said bags have not been identified by P.W. 1. On the other hand, P.W. 1 deposed that the colour of the bag in which he was carrying cash was most probably green whereas the colour of the bag which was seized is gray in colour. P.W. 7, who identified the bags, admitted that there was no special identification mark on the bags and such bags were ordinarily available in the market. Even Rabi Shaw from whose possession the said bags were recovered has been acquitted in the instant case. 26. As the appellants had not been identified in court by the victim (P.W. 1) or other witnesses of fact and that the seized bags had not been identified by P.W. 1 as the one in which he was carrying the cash, it would be unwise to come to a conclusion that the appellants had committed dacoity in the instant case merely because some of them had been apprehended near the place of occurrence. It is also pertinent to note that no part of stolen booty was recovered from their possession at the time of arrest or thereafter. 27. Accordingly, the conviction of the appellants under Section 395 of IPC is liable to be set aside. 28. However, there is cogent evidence on record to show that the appellant No. 1, Durga Bansfore and Chotka Bansfore were apprehended with life arms and ammunitions. Opinion of arms expert (Ext. 13) as well as sanction (Ext. 14) have been duly proved in the instant case. Hence, I uphold the conviction and sentence imposed on the appellant No. 1 for commission of punishable offence under Section 25 of the Arms Act. 29. The appellant Nos. 2 and 3 are acquitted of the charge levelled against them. Appellant No. 1 is convicted of the charge punishable under Section 25 of the Arms Act but acquitted of the charge under Section 395 of the IPC. Sentence imposed upon appellant No. 1 for commission of offence under section 25 of the Arms Act is upheld. 30. The appeal is partly allowed. 31. Period of detention suffered by the appellant No. 1 during the period of investigation, enquiry and trial shall be set off against the substantive sentence imposed on him for commission of offence punishable under Section 25 of the Arms Act. 32. 30. The appeal is partly allowed. 31. Period of detention suffered by the appellant No. 1 during the period of investigation, enquiry and trial shall be set off against the substantive sentence imposed on him for commission of offence punishable under Section 25 of the Arms Act. 32. Let a copy of this judgment along with the lower court records be sent down to the trial court immediately for necessary action.