JUDGMENT : 1. This appeal is directed against the judgment and order of conviction dated 23.02.2016 passed by Additional District & Sessions Judge, Fast Track Court No. 2, Sealdah, District- South 24-Parganas thereby convicting the accused person/appellant herein under Sections 392/397/411 of the Indian Penal Code, 1860 in connection with Sessions Trial No. 03(9) of 2011 arising out of Sinthi Police Station Case No. 03 dated January 17, 2008 under Section 392 of the Indian Penal Code, 1860 and sentencing the accused/appellant to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1000/- in default to simple imprisonment for two months for the offence punishable under Section 392 IPC. , R.I for seven years and to pay fine of Rs.1000/- in default S.I. for two months for the offence punishable under Section 397 IPC and further sentenced to RI for three years and to pay a fine of Rs. 1000/- in default to SI for two months for the offence punishable under Section 411 of the Indian Penal Code, 1860. 2. The brief facts leading to the instant appeal is that one Rakh Pal Singh Mehra @ Rikky of 113/1 Baruipara Lane, P.S.- Baranagar, Kolkata-35 on 17.01.2008 at 8.30 a.m. along-with Sukumar Sharma and driver Abhijit Mandal boarded a hired vehicle being No. WB 23A-3200 and they visited Noapara, Koikhali, Hatghora and last day at Raghunathpur for delivery of the goods of their company and collected about a sum of Rs.25,410/-. From Raghunathpur about 6.15 hrs. they started for their office in the said vehicle. The complainant was sitting in the seat on the left side of the driver and Sukumar Sharma was sitting in the rear side of the said vehicle. The vehicle was being driven through the Jessore Road and while it reached near Dum Dum Road and crossing of Seven Tank Lane (50 Ft. Road), the driver of the vehicle turned the direction and proceeded towards Seven Tank Lane (50 Ft. Road) and approaching the place in slow speed. At that point of time, a person boarded on the said vehicle on rear seat and another person forcibly opened the door of the driver's cabin and took seat beside the complainant when the complainant raised protest but the driver did not raise any objection and proceeded with the vehicle as per instructions of the said person. At that point of time, a person boarded on the said vehicle on rear seat and another person forcibly opened the door of the driver's cabin and took seat beside the complainant when the complainant raised protest but the driver did not raise any objection and proceeded with the vehicle as per instructions of the said person. After crossing certain distance, the driver entered into Seven Tank Lane and after crossing certain distance, the said unknown person took out one nepala from a polythene bag kept inside a shawl and held out threat on the complaint by pressing the said Nepala in his abdomen and asked him to give the money whatever he had with him. The driver did not raise any protest and the complainant in order to save his life handed over the entire money to the said accused. When the said vehicle reached the Seven Tank Lane, the complainant and Sukumar raised hue and cry. Hearing hue and cry, some people came in the surrounding near the said vehicle and taking chance the unknown person sitting in the rear seat fled away and the unknown person sitting in the driver's cabin tried to flee away but the complainant caught hold the person and raised hue and cry. At that time a police van reached there and the accused was apprehended. Prosecution further case is that a sum of Rs. 19,710/- was recovered from the said accused but the rest amount which was scattered during recovery of the money, could not recovered. On being asked, the apprehended accused disclosed his name as Md. Salim and that of his companion as Sohrab Alam. 3. On the basis of recorded statement of Rakh Pal Singh Mehra @ Rikky, Sinthi P.S. Case No. 03 dated January 17, 2008 under Section 392 of the IPC was started and Charge-sheet No. 4/10 dated 08.01.2010 under Section 392 IPC with added Section 397 IPC was submitted by the I.O after completion of investigation. The case was committed to the Court of Sessions and the learned Sessions Judge having taken cognizance under Section 193 Cr.P.C, transferred the same for trial and disposal to the Court of Additional District & Sessions Judge, FTC-II, Sealdah, District- South 24 Parganas hereinafter referred to as the trial Court. 4. Charges under Sections 392/397 IPC were framed against three accused persons namely, Abhijit Mondal, Md. 4. Charges under Sections 392/397 IPC were framed against three accused persons namely, Abhijit Mondal, Md. Salim @ Shamim and Sohrab Alam whereas separate charge under Section 411 IPC was also framed against Sohrab Alam and all the accused persons facing trial pleaded not guilty and claimed to be tried on the charges being read over and explained to them vide order dated 19th September, 2011. Trial was concluded with the examination of as many as 10 prosecution witnesses to substantiate the charges levelled against the accused persons beyond the reasonable doubt. 5. After closure of prosecution evidence the accused persons including the appellant herein were examined under Section 313 Cr.P.C. to which each of them declined to adduce any defense witness and pleaded ignorance with the denial of charges levelled against them. 6. The instant appeal has been preferred by the appellant, inter alia, on the grounds that the learned Judge did not consider the facts and circumstances of the present case in its proper perspective and made a wrong approach to the entire case holding the appellant guilty of the offence charged with resulting in serious prejudice. 7. Mr. P.S. Bhattacharyya learned Amicus Curiae appearing for the appellant contended that the impugned judgment and order of conviction and sentence is completely based on surmises and conjectures as there is no legal evidence to hold the appellant guilty of charges under Section 392 IPC together with charge under Sections 397 and 411 IPC. 8. The learned Trial Court while passing the impugned judgment and order of conviction and sentence has failed to consider that the appellant was a bystander of the said incident and neither any actus ria nor specific overt act was found on the part of the appellant. 9. It is well settled principle of law that the place of occurrence of the alleged offence should not be doubtful otherwise it damages trustworthiness of the version of the eye witnesses in its totality when the evidence of the alleged eye witnesses raise serious doubt in respect of their presence at the time of actual occurrence. 10. It is further contended that discrepancies and contradictions apparent on the face of the evidence of the witnesses have not been appraised by the learned Trial Judge while the appellant has been convicted and sentenced for a term of seven years. 11. Mr. 10. It is further contended that discrepancies and contradictions apparent on the face of the evidence of the witnesses have not been appraised by the learned Trial Judge while the appellant has been convicted and sentenced for a term of seven years. 11. Mr. Bhattacharyya urged that the P.W. 3 a vital witness has failed to recollect even the month of the incident and has admitted that the "nepala" was recovered from a nearby bush and not from the possession of the appellant but the learned Trial Judge has failed to take note of the fact that the place of occurrence allegedly mentioned in the First Information Report does not disclose as to under which post office said place is situated and the call list produced by vodafone does not contain the signature of any of the officers of the said company. Moreover, nobody was injured in the incident while heavy weightage was placed against the appellant for using "nepala". 12. Now it is expedient for the court to critically examine the evidence on record to appreciate the submission of the learned Counsel as to whether or not prosecution suffers from serious and material contradiction touching the root of it. 13. Rakh Pal Singh Mehra @ Rikky, P.W. 1 the FIR maker testified the fact in respect of the incident taking place in the month of January at about 7.30 P.M. to 8.00 P.M. to the effect that he himself and one Sukumar Sharma were employed under distributor of Hindustan Liver and were on their duty to take the goods/articles of the distributor by loading the same in a Auto and to deliver the goods to different shops. So, they were on the way to Kaikhali after the loading the goods in the Auto at 9 A.M. from Kaikhali and thereafter to Attgarah and therefrom to Raghunathpur for delivery of goods. After the goods were delivered at about 5 P.M, they took some returned goods from the shopkeepers and were returning from Baranagar through 50 feet road at Dum Dum. The Auto took a turn to a narrow lane and was moving in a slow speed and then two persons entered into the Auto, one person sat in the front seat of the Auto and another person sat in the back seat. The Auto took a turn to a narrow lane and was moving in a slow speed and then two persons entered into the Auto, one person sat in the front seat of the Auto and another person sat in the back seat. The person who entered into the seat in the front part of the Auto showed PW1 one bomb and a 'napala' and told him to hand over the money whatever he had. Out of fear, the PW1 handed over the money to that person. Thereafter, said person told the driver to take turn towards the opposite direction. The Auto proceeded as per direction of the said accused. While the auto was proceeding, PW1 saw some local people, then he caught hold of the hand of the accused in which he was holding a 'napala' and through his neck. The auto stopped and PW1 raised hue and cry when the local people assembled who took them to a club with a driver and the accused. P.W. 1 deposed that accused persons took a sum of Rs. 2000/- from him which were of Rs. 1,000/- & Rs. 500/- denomination. The incident was narrated to the local people. P.W. 1 had identified the appellant namely, Md. Salim during trial as the accused who was apprehended by him. The FIR Exhibit-1 thus finds corroboration by its maker. 14. Sukumar Sharma P.W. 2 has corroborated PW1 so far the prosecution case is concerned. Sanjoy Kundu P.W. 3 has also testified the fact of incident to this effect that when he was coming from Dum Dum towards 50 feet Chiriamore he saw gathering there and the police who recovered a 'napala' from the nearby bush on 50 feet road known as 7 Tanks Lane. PW3 has put his signature as Exhibit-2 on the seizure list in respect of 'napala' length about 18" of 14" butt black seized by police from a hidden place inside bush by the side of 7 Tanks Lane opposite to the Premises No. 26 1F 7 Tanks Lane, Kolkata in presence of P.W. 3 and one Dipak Das. 15. Sudip De P.W. 4 had a partnership business of redistribution stockist of Hindustan Lever distribution with his brother Sumit De in the name of 'Jharna Marketing'. According to him incident took place on 17th January, 2008. 15. Sudip De P.W. 4 had a partnership business of redistribution stockist of Hindustan Lever distribution with his brother Sumit De in the name of 'Jharna Marketing'. According to him incident took place on 17th January, 2008. He used to regularly take on hire the vehicle of the accused Raju @ Abhijit Mondal for distribution of his goods. Rakh Pal Singh had joined his office about two months prior to the incident. On that day said Rakhpal and Sukumar Sharma were employed for the work of distribution of goods and they left with the goods for distribution. In the evening, Sukumar rang up from the public booth and informed him about the incident and PW4 was called by him to Sinthi Police Station. This witness testified the facts that accused Md. Salim previously used to drive some of his vehicles. He has identified the accused persons during trial. Very often P.W. 4 used to take the vehicle of Raju on hire for the purpose of distribution and on a number of occasion Raju had supplied the goods and brought the cash money to him from his clients. 16. Md. Jane Alam P.W. 5 has been declared hostile by the prosecution. So obviously the prosecution does not want to rely on him. 17. Mr. Nasim P.W. 6 has proved his signature Exhibit 3 as a witness to a seizure list in respect of one black with white colour Reliance Classic Mobile Phone which was taken from the possession of accused Shorab Alam. 18. S.I. Gouridas Mukherjee P.W. 7 of Chitpur P.S. was on petrol duty on 17.01.2008 between 7.00 P.M. and 7.10 P.M. when he saw a gathering at 21, Dum Dum Road and went ahead towards gathering and saw a three wheeler vehicle standing and hue and cry were going on. He saw a person inside the three wheeler who had snatched the money from the person sitting on his left side. 19. On search P.W. 7 got money from the pocket of the said person and counting it was found Rs. 19,710/-. He also found the cover of 'napala' with him. Then he asked his name and he identified as Md. Salim. The incident took place under Sinthi P.S. and handed over all articles to Sinthi P.S. officials under a seizure list prepared by Sinthi police in his presence wherein he has signed, which has been proved as Exhibit-4. 19,710/-. He also found the cover of 'napala' with him. Then he asked his name and he identified as Md. Salim. The incident took place under Sinthi P.S. and handed over all articles to Sinthi P.S. officials under a seizure list prepared by Sinthi police in his presence wherein he has signed, which has been proved as Exhibit-4. He has also proved the label packet in which the money was packed in his presence and the same was collectively marked as MAT Exhibit-I/1 and the signature on the level was marked MAT Exhibit- I/2. He has also proved the 'napala' cover, shawl with the packet that was seized in his presence. P.W. 7 proved the 'napala' cover seized from the possession of the accused as MAT Exhibit- II and the signature of the witness on the label as MAT Exhibit- II/1 and shawl recovered by him which was proved as MAT Exhibit-III. The said vehicle WB 23A/3299 was seized with its keys which have been marked MAT-IV. The P.W. 7 has also identified the accused Md. Salim during the trial as the person from whom aforesaid items were seized. Accused Abhijit Mondal was also identified as the driver of the said three wheeler. 20. Subir Kumr Deb P.W. 8 the Nodal Officer of Vodafone proved the call list in respect of seized phone. Nirmal Dutta Chowdhury P.W. 9 is not an eye witness to the incident. 21. Mr. Atanu Pal P.W. 10 being I.O. of this case deposed in course of his examination in chief that on 17.01.2008 at about 8.30 P.M. one S.I. Gouri Das Mukherjee of Chitpur P.S. came to Sinthi P.S. with accused Md. Salim and Abhijit Mondal along with three wheeler vehicle and S.I. Gouri Das Mukherjee told him that the accused persons were apprehended at 21, Dum Dum Road and the incident took place at 17/2 Seven Tanks Road. During investigation he arrested Md. Salim interrogated him and learnt about the involvement of the driver Abhijit Mondal alias Roy Chowdhury in the offence. I.O. also arrested said Abhijit Mondal at about 23.30 hours from Sinthi P.S. and further proceeded to arrest Md. Shorab Alam from Alam Bazar and thereafter, I.O. proceeded to Dunkuni as he could not find Shorab Alam in Alam Bazar thereafter, on 18.01.2008 at 5.25 P.M. said Shorab Alam was arrested. On 23.01.2008 while in police custody accused Md. I.O. also arrested said Abhijit Mondal at about 23.30 hours from Sinthi P.S. and further proceeded to arrest Md. Shorab Alam from Alam Bazar and thereafter, I.O. proceeded to Dunkuni as he could not find Shorab Alam in Alam Bazar thereafter, on 18.01.2008 at 5.25 P.M. said Shorab Alam was arrested. On 23.01.2008 while in police custody accused Md. Salim made disclosure a statement and on the basis of his statement 'Nepala' was recovered and on usual investigation, I.O. submitted charge-sheet. 22. Although the impugned judgment is confronted with certain discrepancies and contradictions in evidence on record it has to be remembered that they do not necessarily demolish the testimony of the prosecution witnesses. The technicalities of law also do not necessarily upset the finding of facts and the order of conviction. Having appraised the evidence on record as discussed above on their critical analysis I find that the finding of guilt has been correctly recorded but at the same time I am of the view that contradictions as pointed out to by the learned counsel for the appellants are not such material contradictions to shake the root of the prosecution case. Therefore, I do not find any ground to interfere into the findings of fact holding the appellant guilty of the offences as alleged, however, I have heard Mr. Bhattacharyya who argued with force of law that sentences under Sections 392 and 397 of the IPC cannot go together. In support of his contention reference to a decision in case of Swapan Kumar Khan vs. State of West Bengal, (2014) 2 AICLR 516 has been made adverting my attention to the observation in paragraphs 42, 43, 44 and 45 which are reproduced hereunder for peaceful consideration- "42. It is needless to say that Section 397 of the Code is an offence of higher degree compared to Section 394 of the said Code and as such there cannot be conviction on two counts i.e. both Sections 394 and 397 of the Code. The Trial Court naturally erred in convicting the appellants before us on both counts. 43. This Court has already held that the prosecution has failed to prove before the Ld. Trial Court that actually Shamim received any grievous injury and naturally the conviction u/s 397 was unwarranted. Thus, it is reiterated that there cannot be conviction both under Sections 394 and 397 of the Code. 43. This Court has already held that the prosecution has failed to prove before the Ld. Trial Court that actually Shamim received any grievous injury and naturally the conviction u/s 397 was unwarranted. Thus, it is reiterated that there cannot be conviction both under Sections 394 and 397 of the Code. Thus, this point is answered accordingly. 44. Regarding the decision of the Apex Court as reported in (Aslam @ Deewan Vs. State of Rajasthan, (2008) 6 SCC 691 : 2008(4) All India Criminal LR (S.C.) 832) vis a vis this case we are of the opinion that Section 394 was the right section to implicate the miscreants who committed the offence. To this extent the said decision may be accepted in this case. 45. It is a settled principle of law that one person who commits robbery or theft or dacoity cannot be also the receiver of stolen property or receiver of booty of dacoity and as such the person who has been convicted either u/s 394 or u/s 397 or u/s 379 of the Code cannot be convicted in respect of the charge whether it is alternative or not for the offence punishable either u/s 411 or u/s 412 of the Indian Penal Code. Before we part with this point we like to mention again that Section 412 has prescribed the punishment as regards recovery of booty of dacoity. Naturally Section 412 has no application in a case when the principal offence is robbery. We like to say that receiver of booty in a case of robbery can only be punished u/s 411 of the Code and not u/s 412. Thus, the conviction clamped u/s 412 had no sanction of law on the facts and circumstances of this case." 23. Having taken into consideration the proposition laid and in particular adhering to the provisions of Section 397 IPC in conjoint reading with Section 392 IPC, I find that under Section 397 IPC for commission of robbery, or dacoity, with attempt to cause death or grievous hurt, if, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. 24. 24. The learned trial Judge has sentenced the appellant for a period of three years and to pay fine of Rs. 1000/- i.d. two months simple imprisonment for the offence punishable under Section 411 IPC and for the charge under Section 397 IPC the appellant has been sentenced to R.I. of seven years and to pay of fine of Rs. 1000/- i.d. S.I. for two months for the offence. 25. I am not in agreement with Mr. Bhattacharyya learned counsel for the appellants that the charge under Section 397 IPC is not tenable in view of the fact that ingredients of the charge has not been proved inasmuch as there is no injury report in the given case so as to find that the offence of dacoity or the robbery has been committed with the deadly weapon used to hold out threat with dire consequences and to create fear of his life at the time of committing offence of robbery. It is settled principle of law that to attract Section 397 IPC the offence of dacoity or robbery has been committed. Secondly, in the given case the appellant was the person in possession of 'Napala' a deadly weapon who took part in the offence by robbing the P.W. 1 under fear of his death. Thirdly, the appellant had used the said deadly weapon to cause hurt or attempted to cause death or grievous hurt to P.W. 1 at the time of committing offence of robbery. Having consider the ingredient of Section 397 of the Code I am of the view that though no injury was inflicted on the complainant P.W. 1 but offence committed by the appellant comes within the mischief of Section 397 IPC by the reason of use of deadly weapon to create fear of life for committing offence of robbery. It is true that the complaint was not at all inflicted with any injury by said 'Napala' but the robbery was committed in respect of the money of the complainant which he had with him at the material point of time. 26. It appears that learned trial Judge has awarded minimum sentence of seven years but bearing in mind that no injury was inflicted on the complainant save and except for creating threat under fear of life, sentence of five years imprisonment would be sufficient to meet the ends of justice. 26. It appears that learned trial Judge has awarded minimum sentence of seven years but bearing in mind that no injury was inflicted on the complainant save and except for creating threat under fear of life, sentence of five years imprisonment would be sufficient to meet the ends of justice. Accordingly, the sentence under Section 397 IPC stands modified. 27. Taking cue from the decision referred to above, since the complainant was robbed of his money and the same was recovered from the spot itself, charge under Section 411 IPC would not be maintainable. However, this Court maintains the conviction and sentence under Section 392 IPC which provides for punishment for robbery with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. In this case I have found that the robbery which took place was committed before the sunset, therefore, the punishment with rigorous imprisonment of five years and to pay fine of Rs. 1000/- i.d. to two months more for the charge under Section 392 IPC is hereby maintained and is affirmed. 28. In the result, the appeal being CRA 239 of 2016 is dismissed with the above modification. 29. Let a copy of this judgment together with the LCR be sent down to the learned Trial Court forthwith for information and needful action. 30. Urgent certified Photostat copy of this Judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.