Judgment:
1. These three appeals are directed against the Judgment and Order dated 29th of November, 2010 passed in Sessions Trial No.747 of 2008 by the court of 2nd Additional Sessions Judge, Purnea, whereunder the appellants, above named, have been convicted for the offence under Sections 395 and 412 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for 10 years with fine of Rs.5000/- under Section 395 of the Indian Penal Code and for 10 years with fine of Rs.5000/- under Section 412 of the Indian Penal Code. In default of payment of fine to serve the sentence for the further period of three months under each counts. However, both the sentences have been ordered to run concurrently.
2. The prosecution case, as set out in the fardbeyan (Ext.3) of the informant, Nagendra Sah (P.W.9), is that in the night of 5/6.3.2008, he alongwith his family members after taking dinner were sleeping closing the door of his house. At about 1.30 A.M., some persons asked him to open the door, saying that they have to purchase some articles from the shop, on which he replied that he will not open the door in the late night then they told that they have to purchase some necessary articles for the purpose of marriage of their daughter but despite that the informant did not open the door. Thereafter, 7-8 dacoits entered into the room by breaking the latch of the door and on the point of pistol they made query about money, then he handed over the key of almirah. They opened the almirah and took Rs.1000/- (two currency notes, each in the denomination of Rs.500/-), silver and gold ornaments from the almirah. Thereafter, the dacoits pushing the door entered into the room of his brother, Shobha Lal Sah (not examined), and took Rs.20,000/- ( forty notes, each in the denomination of Rs.500/-) and the silver Payal of his daughter, Sujata Kumari (P.W.3), ladies wrist watch etc. from there. The dacoits also entered into the house of his another brother, Sadanand Sah (P.W.4) and took the gold ear rings, sliver necklace, Sonata ladies wrist watch and Nokia mobile of his daughter, Gunja Kumari (P.W.5) and after breaking the lock of the box took Banarsi Saree of purple colour, one Ciffon Saree of light pink colour and one Ciffon Saree of blue colour. At that time, one dacoit from outside informed the dacoits regarding the arrival of the police, then the dacoits started fleeing away. On raising alarm , the villagers assembled and started to chase the dacoits. In course of chasing, the villagers apprehended three dacoits, who disclosed their names as Tawajul Hussain, Ajju alias Ajwa alias Ajail and Ansur (appellants) and they also disclosed the names of other dacoits as Mobark, Khalik, Nitai, Dinesh, Mojibur and Najarul, saying that they had been called by Jamsed for committing the dacoity and then Bissu had collected all the dacoits. The informant has further alleged that in course of chasing the dacoits, sound of bomb explosion was heard at some distance upon which the villagers went there and found one dacoit injured, whose name was disclosed by the apprehended dacoits as Salim, son of Late Ansur. In the meantime, the injured dacoit died due to sustaining bomb blast injury. The informant has stated that he and his family members have seen the dacoits in the light of lantern and torch and claimed to identify the dacoits and looted articles on seeing them again.
3. The aforesaid fardbeyan (Ext.3) of the informant, Nagendra Sah (P.W.9), was recorded by Amar Bishwas (P.W.10), Station House Officer of Jalalgarh Police station, District-Purnea, on 6.3.2008 at 4 A.M. near Durga Mandir in village-Ekamba, who forwarded the same for the institution of the case to the Jalalgarh Police station and himself took the investigation of the case and, accordingly, Jalalgarh P.S. Case No.24 of 2008 under Sections 395 and 412 of the Indian Penal Code was instituted against the 12 accused including the appellants and 6 unknown. Thereafter, P.W.10 prepared the seizure list of the seized articles as found with the appellants in the presence of the witness, Rabindra Prasad Sah (P.W.6) and Prahlad Sah (P.W.1). P.W.10 recorded the restatement of the informant, Nagendra Sah (P.W.9), and the statements of the witnesses and also prepared the inquest report (Ext.6) of the dead body of one of the dacoits, namely, Salim, and proceeded with the appellants for Police Station. After investigation, P.W.10 submitted the chargesheet under Sections 395 and 412 of the Indian Penal Code against the appellants, showing one Salim as dead, continuing the investigation against the rest accused. After submission of the chargesheet, the Chief Judicial Magistrate, Purnea, took the cognizance of the offence and committed the case to the court of sessions, where charges under Sections 395 and 412 of the Indian Penal Code were framed and explained to the appellants to which they pleaded not guilty and claimed to be tried.
4. During trial, the prosecution examined altogether 11 witnesses in support of its case and besides that also got exhibited the several documents. Ext.1 is the signature of Prahlad Sah (P.W.1) on the seizure list (Ext.5). Ext.2 is the signature of Sujata Kumari (P.W.3) on the T.I.P Chart (Ext.7). Ext.2/1 is the signature of Sadanand Sah (P.W.4) on the T.I.P. Chart (Ext.7). Ext.2/2 is the signature of of Gunja Kumari (P.W.5) on the T.I.P. Chart (Ext.7). Ext.1/1 is the signature of Rabindra Prasad Sah (P.W.6) on the seizure list (Ext.5). Ext.2/3 is the signature of Jai Prakash Mandal (P.W.7) on the T.I.P. Chart (Ext.7). Ext.2/4 is the signature of Ramendra Prasad Yadav (P.W.8) on T.I.P. Chart (Ext.7). Ext.2/5 is the signature of the informant, Nagendra Sah (P.W.9) on the seizure list (Ext.5). Ext.2/6 is the signature of the informant, Nagendra Sah (P.W.9) on the fardbeyan (Ext.3). Exts.2/7 to 2/10 are the signatures of Rabindra Sah (P.W.6), Jai Prakash Majumdar (P.W.7), Prahlad Sah (P.W.1) and Amarjit Kumar Sah (P.W.2). Ext.3 is the fardbeyan of the informant, Nagendra Sah (P.W.9). Ext.4 is the formal F.I.R. Ext.5 is the seizure list of the some looted articles. Ext.6 is the inquest report of the deceased, Salim. Ext.7 is the T.I.P. Chart of the articles. Ext.8 is the signature and the handwriting of Manoj Kumar (P.W.11), S.D.O., who conducted the T.I. Parade, on T.I.P. Chart (Ext.7). Ext.9 is the post-mortem report of the deceased, Salim.
5. The trial court on consideration of the evidence of the witnesses and the materials available on the record convicted and sentenced the appellants as indicated above.
6. Learned counsel for the appellants made submission that it would appear from perusal of the evidence of the witnesses available on the record that the appellants have not been apprehended on the spot, where the dacoity is said to have been committed rather they have been apprehended by the villagers, one kilometer away, on mere suspicion but they have not been put on T.I. Parade for identification. More so, P.Ws.4 and 9 have stated in their evidence in paragraphs-9 and 18 respectively that appellants after being apprehended were taken at Durga Asthan but P.W.2 has stated in his evidence that appellants were taken near the house of P.W.9. As such, the conviction and sentence of the appellants under Sections 395 of the Indian Penal Code is not sustainable in the eye of law. It is further submitted that it would appear from perusal of the evidence of P.Ws.10 and 11 that there is contradiction in their evidence on the point of putting the similar articles to the seized articles in the Test Identification Parade of articles. P.W.10, who is the Investigating Officer of the case, has stated that similar articles were put on Test Identification Parade with the seized articles by P.W.11 but P.W.11, who conducted the Test Identification Parade, has stated that similar articles to the seized articles were already put in Test Identification Parade before reaching him there, which creates doubt about fairness of Test Identification Parade of the seized articles. As such, the conviction of the appellants under Section 412 of the Indian Penal Code is not sustainable in the eye of law.
7. Now, I proceed to consider the evidence of the prosecution to come to the conclusion that whether the impugned Judgment of Conviction and Order of Sentence passed by the trial court against the appellants are justified or not.
8. P.W.9, Nagendra Prasad Sah, who is the informant of the case, has stated that at the time of occurrence, he was sleeping in his house alongwith his family members. At that time, 17-18 dacoits came and asked to open the door on the pretext of buying some article, then he refused. Thereafter, the dacoits entered into the house after breaking the latch of the door and on the point of pistol started to make demand of the key of almirah, then he handed over the key. The dacoits opened the almirah and took the two notes in the denomination of Rs.500/-, gold and silver ornaments. Thereafter, the dacoits entered into the room of his brother, Shobha Lal Sah (not examined) and from there they also took cash Rs.20,000/- , watch, and Payal etc. of his daughter, Sujata (P.W.3). The dacoits also entered into the room of his another brother, Sadanand Sah (P.W.4) and took the ornaments of his daughter, Gunja (P.W.5) and also took one Banarsi Saree of purple colour and one saree of pink colour besides other articles from there. In course of chase by the villagers, three dacoits were apprehended. In the meantime, a bomb was blast in which one dacoit sustained injury and died within 15-20 minutes. Apprehended dacoits disclosed their names as Tawajul Hussain, Ajju alias Ajwa and Ansur (appellants) in presence of Darogaji. They also disclosed the names of their associates as Dinesh, Nitai, Samser and others and also disclosed the name of the deceased dacoit as Salim. Police also recovered the looted articles from their possession regarding which the paper was prepared. This witness has further stated that he identified the dacoits in the light of lantern. This witness has further stated that he identified the articles in Test Identification Parade conducted by B.D.O., Manoj Kumar (P.W.11) and proved his signature on T.I.P. Chart (Ext.7) as Ext.2/5. This witness has further stated that his statement was recorded by Darogaji on which he put his signature and proved his signature on his fardbeyan (Ext.3) as Ext.2/6 and also the signatures of the witnesses, Rabindra Sah (P.W.6), Jai Prakash Majumdar (P.W.7), Prahlad Sah (P.W.1) and Amarjit Kumar Sah (P.W.2), as Exts.2/7 to 2/10 on the fardbeyan (Ext.3). This witness has identified the accused-appellants by face in court. This witness has stated in paragraph-10 of his cross examination that the courtyard of his house and his brothers, Shobha Lal Sah (not examined) and Sadanand Sah (P.W.4) is the same and there are seven rooms in their house. In the room, the door of which was broken by the dacoits, he is running a grocery shop. This witness has further stated at paragraphs-17 and 18 of his cross examination that the villagers chased the dacoits up to one kilometer and the dacoits were caught after 45 minutes of their moving from his house. The police was informed in course of moving the dacoits and just after apprehending the dacoits, the police came there and the dacoits were handed over to Darogaji at Durga Asthan. From the evidence of this witness, it is apparent that he identified the dacoits in the light of lantern in course of dacoity. Just after moving of the dacoits, on the rumour of the arrival of the police , the villagers gathered and chased the dacoits and in that course the appellants were caught hold of with some looted articles and one dacoit, namely, Salim, in course of fleeing away, sustained bomb blast injury and died. Just after apprehending the dacoits by the villagers, police came and they were handed over to the police. He also identified the appellants by face in court also.
9. P.W.1, Prahlad Sah, has stated in his evidence that at the time of dacoity, he was sleeping in his house and on hullah he moved with torch towards the house of Nagendra Sah (P.W.9) and then saw the dacoits fleeing away. Thereafter, he alongwith the villagers chased the dacoits up to one kilometer and in that course three dacoits were apprehended, who disclosed their names as Tawajul, Ajju and Ansur (appellants) and also disclosed the names of other dacoits who succeeded in fleeing away. Sarees and Kulhari were recovered from the possession of apprehending dacoits regarding which the seizure list was prepared before him by the police on which he put his signature and he proved his signature on the seizure list as Ext.1. This witness has further stated in his cross examination at paragraph-4 that the search was made by the police and the police prepared the seizure list. This witness has stated that the dacoity was committed in between 1.30 to 2.00 A.M. in the night. From the evidence of this witness, it appears that after hearing the alarm of the dacoity, he went to the house of the informant (P.W.9), where he saw the dacoits, who were fleeing away, and on chase three dacoits (appellants) were caught by the villagers. Thereafter, the police also reached there and made search and prepared the seizure list of the recovered articles.
10. P.W.2, Amarjit Kumar Sah, is the co-villager of the informant. He has stated in his evidence that the occurrence took place about 1½ years earlier in the night. At that time, he was sleeping at the grocery shop and heard hullah of committing dacoity, thereafter, then went there alongwith the villagers and saw the dacoits, who were 20-25 in numbers, fleeing away. Thereafter, he alongwith the villagers chased the dacoits and in that course three dacoits were apprehended with looted articles and carried near the house of Nagendra Sah (P.W.9). On query, the apprehended dacoits disclosed their names as Tawajul, Ajju and Ansur (appellants). In course of fleeing away, one dacoit, who was with bomb, sustained bomb blast injury and died, whose name was Salim. In the morning, police came and prepared the seizure list of the seized articles and moved with the dacoits with the articles. This witness has further stated at paragraph-5 of his cross examination that the dacoits were apprehended at the distance of about 1/2 to 3/4 kilometers from the house of the informant on chase by 50-60 villagers. He could not disclose the name of the villagers, who were ahead to him. In paragraph-6 of his cross examination, this witness has stated that the dacoits were caught in the morning about 3 A.M. and the occurrence of dacoity took place in between 1.30 to 2.00 A.M. in the night. This witness has further stated that he could not say that who had caught hold of the dacoits but the dacoits were caught hold of in the field. From the evidence of this witness, it is clear that on hearing the alarm of committing dacoity, he alongwith others reached at the house of the informant, then saw that the dacoits were fleeing away from there. Thereafter, the villagers chased the dacoits and in that course, three dacoits (appellants) were apprehended and at that time, one dacoit, namely, Salim, who was with bomb, died due to bomb explosion. Just after apprehending the accused, Darogaji came, who prepared the seizure list of the looted articles as recovered from the possession of the dacoits, and moved to the Police Station with the dacoits and the looted articles.
11. P.W.3, Sujata Kumari, daughter of Shobha Lal Sah, has stated in her evidence that at the time of occurrence, she alongwith her mother was sleeping in a room. All of sudden, she woke up on entering the criminals in a room by breaking the door and saw 10-15 dacoits, who tied her father and on the point of pistol. She identified the dacoits in the light of lantern, who looted the cash Rs.20,000/- and also her gold, silver ornaments and wrist watch and they moved with the looted articles. On hullah, villagers chased the dacoits and in that course, three dacoits were caught hold of and one died due to bomb explosion. She saw the three dacoits on apprehending by the villagers. She has further stated that she had gone to the Police station to identify the articles, which were seized from the possession of the apprehended dacoits. She identified her wrist watch, two sarees and two notes in the denomination of Rs.500/- and she proved her signature on the T.I.P. Chart (Ext.7) as Ext.2. She has also identified the appellants in court. There is nothing in her cross examination to disbelieve her evidence on the point of committing dacoity and seeing the dacoits and also apprehending the appellants by the villagers just after the occurrence of committing dacoity and seeing them again.
12. P.W.4, Sadanand Sah, has stated in his evidence that the occurrence is of the night of 5.3.2008. At that time, he was sleeping in a room and his wife was also sleeping in the adjacent room. At that time, some criminals entering into the house by breaking the door looted the mobile, ladies wrist watch, clothes etc. The dacoits also made demand of money, then he replied that he has no money. He identified the dacoits, at that time, in the light of lantern, which was lightening. This witness has further stated that he identified the criminals at the Police Station and also when the villagers had apprehended them. He identified the looted articles at the Police Station in presence of the Circle Officer (C.O.), who also prepared the paper on which he put his signature. He also proved his signature on the T.I.P. Chart (Ext.7) as Ext.2/1. This witness has identified the appellants by face in court. This witness in paragraph-5 of his cross examination has stated that 5-7 criminals had entered in his house by breaking the door and they had not covered their faces and they committed dacoity in the house about 15 minutes. This witness has further stated in paragraph-6 of his cross examination that he came out from the house after 4-5 minutes of the occurrence of committing dacoity by the dacoits. In the meantime, several villagers had already gathered at the door, he again saw the dacoits/appellants after apprehending by the villagers. In paragraph-9 of his cross examination, this witness has further stated that the dacoits were taken to Durga Asthan by the villagers and the seized articles had been kept in the Verandah of Durga Asthan. From the evidence of this witness, it is clear that at the time of occurrence, the dacoits entered in the house and looted the articles. He identified, at that time, the dacoits in the light of lantern and three dacoits were apprehended by the villagers and then he also saw them. This witness also identified the appellants in court.
13. P.W.5, Gunja Kumari, has stated in her evidence that at the time of occurrence, she was sleeping alongwith her mother in the house. When the dacoits started breaking the door, she woke up. About 8 dacoits entered the house by breaking the door and by breaking the box, looted the ornaments, mobiles, wrist watch, two sarees etc. and at that time, the dacoits tied the hand of her father from back side. At that time, the dacoits also took her ear ring, necklace and Payal. The dacoits also took her one saree on which she had written her name by knitting. At that time, she identified the dacoits in the light of lantern and torch. She has further stated that after sometime, the villagers apprehended three dacoits and she heard the two sounds of bomb explosion in which one criminal having bomb died. She had also seen three dacoits after being apprehended by the villagers. This witness has also identified the dacoits/appellants in court by their face. This witness has also stated that she had identified her two sarees at the Test Identification Parade of the looted articles and she also proved her signature on Test Identification Chart (Ext.7), which has been marked as Ext.2/2. This witness has stated in paragraph-8 of her cross examination that the paper was not prepared in field where the dacoits were apprehended rather the paper was prepared at her door. From the evidence of this witness, it is clear that at the time of occurrence of dacoity, dacoits entered in her house by breaking the door and looted the articles, i.e., ornaments, sarees etc and at that time, the dacoits had not covered their faces and she identified the dacoits in the light of lantern and torch in course of dacoity. She also identified the dacoits on apprehending by the villagers, just after committing the dacoity and identified the appellants by face in court.
14. P.W.6, Rabindra Prasad Sah, who is the co-villager of the informant, has stated in his evidence that at the time of occurrence, he woke up on the alarm of the villagers regarding committing dacoity in the house of Nagendra Sah. On hearing hullah, he alongwith other villagers chased the dacoits about 1/2 kilometers, then saw that three dacoits were apprehended, who were carried near the house of Nagendra Sah (P.W.9). Thereafter, Darogaji took them to the Police Station. He has further stated that when he and the villagers were chasing the dacoits, at that time the sound of bomb explosion was heard in which one dacoit died. The looted articles were also seized by Darogaji from the dacoits in which there were to currency notes in the denomination of Rs.500/-, watch, saree etc. This witness put his signature on the seizure list (Ext.5) and he proved his signature on the seizure list as Ext.1/1. This witness did not identify the dacoits in court saying that as they were apprehended in night, as such, he has problem to identify them. From the evidence of this witness, it is clear that at the time of dacoity, he woke up on hearing hullah of the villagers and also chased the dacoits alongwith the villagers and in that course, three dacoits were caught and some looted articles were recovered of which Darogaji prepared the seizure list on which he put his signature.
15. P.W.7, Jai Prakash Mandal and P.W.8, Ramendra Prasad Yadav, are the witnesses of the Test Identification Parade of the looted seized articles. They have stated in their evidence that in their presence, Test Identification Parade was conducted by the Circle Officer, Jalalgarh, in which Nagendra Sah (P.W.9), Gunja Kumari (P.W.5) and Sadanand Sah (P.W.4) identified the articles and T.I.P. Chart was prepared on which they put their signatures, they also proved their signatures on the Test Identification Chart respectively as Exts.2/3 and 2/4. From the evidence of these witnesses, it is clear that Test Identification Parade was conducted and Test Identification Chart (Ext.7) was prepared in their presence by the Circler Officer, Jalalgarh.
16. P.W.10, Amar Bishwas, is the Investigating Officer of the case. He has stated in his evidence that on 6.3.2008, he was posted as Officer Incharge of Jalalgarh Police Station. On that date, at about 4 A.M., he recorded the fardbeyan of the informant, Nagendra Sah (P.W.9) in village Ekamba in presence of the witnesses and he proved the fardbeyan of the informant, Nagendra Sah (P.W.9), as Ext.3. He has further stated that on recording the fardbeyan of the informant, he forwarded the same to the Police Station for drawing the formal F.I.R. and formal F.I.R. was drawn by A.S.I., Yamuna Prasad Singh and he also proved the formal F.I.R. as Ext.4. He has further stated that he prepared the seizure list of the looted articles in presence of the two witnesses, Rabindra Prasad Sah (P.W.6) and Prahlad Sah (P.W.1) on which the witnesses and the three accused put their signatures and he proved the seizure list as Ext.5. This witness has further stated that after recording the restatement of the informant, Nagendra Sah (P.W.9), he inspected the place of occurrence, which is the house of the informant, Nagendra Sah, situated at village-Ekamba, towards 50 meters south to the Durga Mandir connected with the bricks soiling. In the house of the informant, one door was in front and two doors were in back side and in one room, there was grocery shop. In west, there was one sheet roofed room of Shobha Lal Sah and in west two pakka rooms of Sadanand Sah were situated. In the rooms, the articles were found scattered. After inspection of the place of occurrence, he recorded the statement of the witnesses, Gunja Kumari (P.W.5), Sadanand Sah (P.W.4), Sujata Kumari (P.W.3), Shobha Lal Sah (not examined), Rabindra Sah (P.W.6), Prahlad Sah (P.W.1), Amarjit Sah (P.W.2) and Bandelal Sah (not examined). He has further stated that when the dacoits were fleeing away, one dacoit died due to bomb explosion and he prepared the inquest report of the dead body of that dacoit and he proved the inquest report of the dead body of dacoit, namely, Salim, as Ext.6. He also arrested the three dacoits (appellants). In course of investigation, he collected the post-mortem report of the deceased dacoit, Salim. The Test Identification Parade of the seized articles was conducted by the Circle Officer, Manoj Kumar (P.W.11) in presence of the witnesss, Jai Prakash Mandal and Rabindra Prasad Yadav, who prepared the Test Identification Chart and he put his signature on the Test Identification Chart and this witness proved the Test Identification Chart as Ext.7. He after completing the investigation, submitted the chargesheet. This witness has stated in paragraph-17 of his cross examination that the articles similar to the seized looted articles were arranged by the Circle Officer (P.W.11). When Circle Officer reached at the Police Station, the seized articles were handed over to him for identification on bringing the same from Malkhana and after identification, the seized articles were handed over to him which were again kept in the Malkhana.
17. P.W.11, Manoj Kumar, S.D.O., Nirmali, has stated in his evidence that since 30.4.2007 to 4.4.2010, he was posted as Circle Officer, Jalalgarh. On 6.5.2008 he conducted the Test Identification Parade of the seized looted articles in connection with Jalalgarh P.S. Case No.24 of 2008, and prepared the Test Identification Chart on which the witnesses had put their signatures and he also put his signature and he proved his signature on the Test Identification Chart (Ext.7) as Ext.8 He has further stated in paragraph-3 of his cross examination that for the first time he had seen the articles, at the time of Test Identification Parade, at the Police Station He has further stated in paragraph-4 of his cross examination that he had not accompanied any staff at the Police Station nor he had carried any articles there. When he reached at the Police Station, the articles were already placed for Test Identification Parade. In addition to the articles identified by the witnesses, 2 -3 similar articles were also there but it is not in his memory that what was the nature of those articles which were either identified or not. From the evidence of this witness, it is clear that he conducted the Test Identification Parade and prepared the Test Identification Parade Chart on which he put his signature in presence of the witnesses.
18. From the evidence of P.W.9, the informant, Nagendra Sah, P.W.3, Sujata Kumari, P.W.4, Sadanand Sah and P.W.5, Gunja Kumari, it is apparent that the dacoits entered into the house by breaking the door and looted wrist watch, cash and clothes and the dacoits were identified at that time in the light of lantern and torch. These witnesses have also claimed to identify the appellants as dacoits after apprehending the appellants by the villagers. P.Ws.9, 3 and 5 have also identified the appellants by face in court also. P.W.1, Prahlad Sah, P.W.2, Amarjit Kumar Sah, and P.W.6, Rabindra Prasad Sah, who are the co-villagers of the informant, P.W.9, have also stated that on hearing the hullah of dacoity, they also reached near the house of the informant, Nagendra Sah, where the villagers were also present and, thereafter, the dacoits were chased and in that course, three dacoits were apprehended ahead about one kilometer in the filed. At that time, the sound of bomb blast was heard in which one dacoit sustained bomb blast injury and died on the spot. The apprehended dacoits were taken to Durga Asthan and then the police came. These witnesses have also stated about the recovery of the some looted articles in their presence by Darogaji (P.W.10) and also about preparing the seizure list (Ext.5).
The learned counsel for the appellants submitted that the appellants were caught hold by the villagers on mere suspicion but they were not put on Test Identification Parade for identification. The records show that the appellants are not the resident of the P.O. village and they belong to the District -Maldah (West Bengal). No any suggestion has been drawn, in course of trial, to the witnesses about the cause of the presence of the appellants in the P.O. village at the time of occurrence. The appellants were apprehended with some looted articles by the villagers soon after the dacoity and taken near Durga Asthan, where P.W.9, Nagendra Sah, P.W.3, Sujata Kumari, P.W.4, Sadanand Sah and P.W.5, Gunja Kumari, also identified the appellants as dacoits. P.W.10 also arrested the appellants there. Under such circumstances holding the Test Identification Parade of the appellants for identification during investigation was meaningless because the purpose of Test Identification Parade for identification is only to assure the Investigating Agency that investigation is proceeding on right direction. P.W.10, the Investigating Officer of the case, has stated in his evidence, in paragraph-5, that Durga Asthan (temple) is 50 meters away in the east to the house of the informant (P.W.9) connected with the bricks soiling road. As such, the statement of P.W.2 that the dacoits were placed near the door of the informant and the statements of P.Ws.4 and 9 that appellants were placed near Durga Asthan are not contradictory because both places are adjacent, in short distance.
As far as the submission of the learned counsel for the appellants that the Test Identification Parade of the seized articles was not conducted properly because on the point of putting the similar articles, there is contradictory evidence of P.Ws.10 and 11 is concerned, while it has come in the evidence of P.W.10, who is the Investigating Officer of the case, that similar articles were arranged by P.W.11, who conducted the Test Identification Parade, and P.W.11 stated that similar articles were already there. But P.W.10 has clearly stated that in Test Identification Parade similar articles were also there with looted seized articles. P.W.10, the Investigating Officer of the case, has not been cross examined on the point that only seized articles were placed in Test Identification Parade. As such, I do not find any substance in the aforesaid submission of the learned counsel for the appellants.
19. From the evidence and the discussions as made above, I come to the conclusion that the appellants alongwith others were involved in dacoity committed at the house of the informant and his two brothers. As such, the conviction of the appellants passed by the trial court under Section 395 of the Indian Penal Code is justified.
Soon after the occurrence of dacoity in the house of the informant, the appellants were apprehended by the villagers with some looted articles and the looted articles were also seized by P.W.10 in presence of P.Ws.1 and 6. Therefore, the conviction and sentence of the appellants under Section 412 of the Indian Penal Code in addition to conviction and sentence under Section 395 of the Indian Penal Code is not permissible in law and unjustified.
So far as the sentence of the appellants under Section 395 of the Indian Penal Code is concerned, from the evidence of the witnesses as discussed above, it is apparent that in course of committing dacoity, no injury was caused to anyone and there is no evidence to the effect that the appellants have criminal antecedents. Under such circumstances, the sentence of eight years rigorous imprisonment with fine Rs.5000/- and in default of payment fine, further sentence for the period of three months, would be sufficient to meet the ends of justice.
20. In the result, all the three Criminal Appeals are allowed partly. The Judgment of Conviction under Section 395 of the Indian Penal Code passed by the trial court against the appellants is upheld with the modification in the sentence from 10 years rigorous imprisonment with fine of Rs.5000/- and in default of payment of fine, further sentence for the period of three months to eight years rigorous imprisonment with fine of Rs.5000/- and in default of payment of fine, further sentence for the period of three months. However, the Judgment of Conviction and Order of Sentence of the appellants under Section 412 of the Indian Penal Code passed by the trial court is set aside.
21. Let the copy of this Judgment be sent to the trial court for needful.