Judgment:
Partha Sakha Datta, J.
1. This appeal is directed against the judgment and order dated 30th of May, 1987 passed by the learned Additional Sessions Judge, 1st Court, Midnapore in Sessions Trial Case No. V of July 1984 convicting the four appellants, namely Haladhar Nandi, Sukumar Laha, Astam Hembram and Bistu Duley under Section 395 of the IPC and sentencing each of them to suffer R.I for 4 years on the said charge.
2. P.W. 3, Kalipada Pal lodged an ejahar at 08-20 hrs. on 23rd of March, 1982 alleging the following incident:
On the night between 22nd of March, 1982 and 23rd March 1982 at about 01-00 a.m. when the members of the family had been sleeping in their respective rooms in the house there was heard sound of knocking of doors in the western side of the covered varandah of the complainant's two-storied building. When the complainant came out he found some people striking against the door from outside with the help of an axe. It was realized that a dacoity was being committed. His elder son Kajal @ Gorachand (P.W. 4) was sleeping on the covered varandah. The dacoits charged the inmates of the house by breaking opon the door of the covered varandah but because of resistance made by P.W. 4 and his younger brother Durlav pal (P.W. 12) who was on the first floor of the house the dacoits could not immediately enter the rooms of the first floor. Some dacoits sustained injury caused by the members of the house by means of lathi. The dacoits entered into the room of the complainant (P.W. 3) and looted the following articles:
Necklace (double), eight gold plated bronze bangles, one pair of gold ear ring, two pieces of gold rings - one filled with red stone, one (1) piece of silver tora, cash of Rs. 1200/-, black coloured + blue coloured trousers, blue coloured + 1 while coloured chinese shirt.
Then they entered into the room of his nephew Biren and took away the articles, namely - 16 gold plated bronze (churies) bangles, one bicha necklace, one English bicha necklace, one pair of gold ear ring, 3 pairs of silver nupur, 2 bronze bangles, Cash of Rs. 400/-.
3. Thereafter they looted one water pot made up of brass, one bell- metalled utensil called 'kansa' and four pairs of gold ear rings from the room of his brother Haripada Pal (P.W. 9). Amidst the happening of the incident the complainant and the members of his family could be able to apprehend one of the dacoits, namely Haladhar Nandi and he was made over to the police when police came to the spot in the morning of 23rd of July, 1983, while the other members of the gang managed to escape.
4. On this written ejahar Garbeta Police Station Case No. 15 dated 23rd of March 1982 was registered against Haladhar Nandi. Upon completion of investigation police submitted charge sheet against Haladhar Nadi and ten others under Section 395/412 IPC.
5. The learned Additional Sessions Judge, 1st Court, Midnapore by order dated 11th of December, 1984 framed charges under Section 395 IPC against all the 11 accused persons including Haladhar Nandi; and under Section 412 IPC against Sukumar Laha @ Banchu and one Nidhu Bag who also were charged along with the other accused persons under Section 395 IPC.
6. The learned Additional Sessions Judge upon completion of trial convicted Haladhar Nandi, Sukumar Laha, Astam Hembram and Bistu Duley under Section 395 IPC. Though Sukumar Laha was also charged under Section 412 IPC no separate sentence was awarded against him under Section 412 IPC. They were all sentenced to suffer R.I. for 4 years on account of the charge under Section 395, IPC, while the other accused persons who faced trial were acquitted of the charges.
7. There is a defence story particularly in respect of the appellant Haladhar Nandi. The story is that Haladhar Nandi and other accused persons who were convicted were known to the family of the complainant since before the date of the incident. Like P.W. 3, Kalipada Pal, Haladhar Nandi also carries on business of potatoes. Haladhar had visiting term to the house of P.W. 3 and vice versa; and a sum of Rs. 3,500/- was payable in favour of Haladhar Nandi. As it appears from the evidence of D.W. 1, Nanda Dulal Pal and D.W. 2, Madhusudan Nandi who happens to be a relation of the appellant, Haladhar had come to the house of P.W. 3 on 9th Chaitra, 1388 B.S. being accompanied by D.W. 2 to meet P.W. 1 in connection with potato business. As accounts could not be settled with Kalipada Pal on the day Haladhar remained in the house of P.W. 3, while D.W. 2 returned home. Haladhar was to return back home on the next day but also he has been falsely implicated. So far as other appellants are concerned, they were known to the complainant since before the incident; and so far as appellant Bistu Duley is concerned it is the defence case that he led a labour movement and he has been prosecuted out of grudge. As regards Astam Hembram, he is said to be a man of the locality and evidence of P.W. 11, Sukhdev Marik is taken help of to substantiate the defence case that the said Astam Hembram is a man of the locality.
8. The prosecution examined 17 witnesses and a brief narration of evidence of the witnesses would be necessary.
9. It appears from evidence of P.W. 15, Dilip Kumar Basu, the Judicial Magistrate that he conducted T.I. Parade in respect of Sudhir Soren, Nidhu Bag, Abani Duley, Sukumar @ Banchu Laha and Kishore Bagal. P.W. 3 identified Sukumar @ Banchu Laha and P.W. 9, Haripada Pal identified Abani Duley. Another Judicial Magistrate held T.I. Parade on 21st of April, 1982 in respect of four other suspects, namely Basudev Pal, Ratan Bhuinya, Bistu Duley and Madhusudan Pratihar. None of these four suspects is appellant before us but the Magistrate who held T.I. Parade in respect of these four suspects on 21st of April, 1982 has not been examined. Again, the same learned Magistrate also conducted T.I. parade on 23rd September, 1982 in respect of Astam Hembram and Ashoke Thakur and in that T.I. Parade P.W. 3, Kalipada Pal, P.W. 4 Gorachand Pal and P.W. 12, Durlav Pal identified the appellant Astam Hembram (Ext. 5) but the Magistrate who conducted T.I. parade in respect of Astam Hembram was not examined. Although the identification Memo has been marked Ext. 5 and it could not be understood whether the defence raised or did not raise any objection to marking the identification charts or memorandum as Exbts. ( Ext. 5 series).
10. The prosecution evidence rests on two parts. One part is spoken of by P.W. 1, Gopal Chandra Rana and P.W. 2, Kartick Chandra Samanta in respect of seizure of gold ear rings, while the other part relates to the incident of dacoity itself wherein Haladhar Nandi was apprehended at the spot. With respect to the second aspect of the prosecution case let us begin with the evidence of P.W. 3, Kalipada Pal. He gives a vivid description of the manner in which the incident occurred. In the night of the incident the western door was knocked by the dacoits and it was being broken upon by means of axe. There was hurled, crackers and bombs from outside his house. P.W. 4, Gorachand Pal was sleeping in the covered varandah near the western door in the ground floor. P.W. 12, Durlav Pal was in the upstairs. P.W. 3's nephew Dhiren was sleeping in the ground floor where the dacoits approached. P.W. 4 and P.W. 12 followed the dacoits to that room. One of the dacoits fired from near the staircase. P.W. 4 and P.W. 12 had a fight with the dacoits. As P.W. 4 tried to capture the dacoits he was struck on his right forearm but P.W. 12 could be able to apprehend one of them who is Haladhar. Now, P.W. 3 identified in Court Bistu Duley, Sukumar Laha @ Banchu and Astam Hembram besides Haladhar Nandi. This witness identified amongst a good number of stolen gold ornaments, a pair of 'kanpasha' and a pair of gold ear rings which have been marked Mat. Ext. I and Mat. Ext. II to be the recovered stolen articles belonging to the women members of the family.
11. P.W. 4, Gorachand Pal, the son of P.W. 3 corroborates in details as to how the incident happened saying how the appellant Haladhar Nandi would only be apprehended while other fled away. This witness identified appellant Astam Hembram who was also identified in the T.I. Parade by him. He further identified three ear rings and one 'kanpasha', Mat. Ext. I and Mat. Ext. II said to be belonging to one family member Binapani, the wife of P.W. 9 and his daughters Alpana and Chandana.
12. P.W. 5 is Tara Sankar Roy, neighbour of P.W. 3 who having rushed to the house of P.W. 3 found Haladhar Nandi being tied up in the house and he identified the said appellant Haladhar Nandi in court. It was P.W. 3 who narrated to him the incident and the person who has apprehended gave out his name as Haladhar Nandi.
13. Evidence of P.W. 6 Jayanta Kumar Pal, A.S.I. of Police, P.W. 7, Ramendralal Banerjee and P.W. 14, Subodh Palwan requires no mention, evidence of them being practically nil.
14. Evidence of P.W. 8, Dr. Laxmikanta Das is important in this that he examined one accused Nidhu Bag (non-appellant and non-convicted) who receives stabbed injury in connection with the incident of dacoity on the night of 22nd of March, 1982. Though Nidhu Bag has been acquitted by the learned trial court because of his non-identification by any of the witnesses emphasis has been made of him by the prosecution only to substantiate the point that there had really taken place an incident of dacoity committed by a good number of people and Nidhu Bag was one of them having sustained injuries in the hand of a member of complainant party, while P.W. 4 sustained injury as the miscreants dealt blow against him.
15. P.W. 9, Haripada Pal, the brother of P.W. 3 corroborates P.W. 3 and P.W. 4 and said that P.W. 3 and P.W. 12 had a fight with the dacoits and in the fight P.W. 3 received injury. Now this witness identified two pair of gold ear rings; one pair of gold ear ring is called 'kanpasha' and another two pairs of gold ear rings belong to his two daughters, Alpana and Chandana and the said ornaments were marked Mat. Ext. I and Mat. Ext. II collectively. In his examination-in-chief he is said that Haladhar Nandi could be apprehended and in cross-examination he has stated that the gold ornaments were taken away from his wife and the daughters.
16. P.W. 10 is one Sakti Sadhan Pal who rushed to the house of P.W. 3 and found Haladhar Nandi having been apprehended there. He further found injury on the body of P.W. 4. This witness identified the appellant Bistu Duley in the T.I. Parade and also before the court. It was suggested to this witness that Bistu Duley took part in the labour movement in December, 1982 and he has been falsely implicated though he denied the defence suggestion.
17. P.W. 11, Sukhdev Marik having gone to the house of P.W. 1 found Haladhar having already been apprehended. In cross-examination he stated that he knew the appellant Astam Hembram since he is a man of the locality.
18. P.W. 12, Durlav Pal, elder brother of P.W. 3 corroborates P.W. 3, P.W.4 and P.W. 9. He is the witness who could be able to apprehend Haladhar Nandi in the T.I. Parade and also before the court. From his cross-examination it appears that Haladhar was assaulted by fists and blows. This witness further identified Material Ext. I and II saying that three pairs of gold ear rings and kanpasha belong to Binapani, wife of P.W. 9 and his daughters Alpana and Chandana (Mat. Ext. I and II collectively).
19. P.W. 13 is Dhirendra Nath Pal, son of P.W. 9 and nephew of P.W. 3. He identified Haladhar Nandi who was apprehended in his house and one Abani Duley, non-appellant. He further identified the gold ear rings and 'kanpasha' (Mat. Ext. I and Mat. Ext. II) saying that these ornaments belong to his mother and sisters.
20. P.W. 16, Sakti Prasad Chanda, a police officer of Ghatal Police Station effected seizure of gold ear rings (Mat. Ext. I and II collectively) from Sukumar @ Banchu Laha and Nidhu Bag. It appears from evidence of P.W. 16 that two pairs of gold ear rings were recovered from the possession of Sukumar @ Banchu and one pair of gold ear ring was recovered from Nidhu Bag at Moirapukur Crossing under P.S. Ghatal at about 5-30 a.m. on 27th of March, 1982 in presence of the witnesses against a seizure list (Ext.1/4). Now this police officer effected seizure of the ornaments from the appellant Sukumar @ Banchu and non-appellant Nidhu Bag when he was attached to Ghatal P.S. and he could be able to ascertain that they were arrested in connection with the Garbeta Police Station Case No. 15 dated 23rd of March, 1982 and intimation was sent to the Garbeta P.S.
21. P.W. 17, Kanailal Roychowdhury is the I.O. of the case. Having thus recorded the sum total of evidence of the witnesses let us proceed to have a critical appreciation thereof. The prosecution case is based on three pillars. The first pillar is the apprehension of the appellant Haladhar Nandi by P.W. 4 and P.W. 12 in course of the incident. The second pillar is the identification of the appellants in the T.I. Parade. The third pillar is seizure of gold ornaments (Mat. Ext. I and II) from the possession of Sukumar @ Banchu Laha and one Nidhu Bag.
22. With respect to the seizure of the gold ornaments evidence of P.W. 16 has to be read with evidence of P.W. 1, Gopal Chandra Rana and P.W. 2, Kartick Chandra Samanta. Seizure list is Ext. 1/4 which reveals seizure from the possession of Sukumar and Nidhu in the morning of 27th of March, 1982 by P.W. 16 at Ghatal Moirapukur Road Crossing and the seized articles were a 'kanpasha' (gold ear ring) weighing 315 mg., one pair of big ear ring and another pair of small ear ring. P.W. 1 identified Mat. Ext. I and II pointing out that they were seized from Sukumar Laha and Nidhu Bag. The same is the evidence of P.W. 2, Kartick Chandra Samanta. They stood the test of cross-examination and could not be shaken at the least. They identified Sukumar Laha @ Banchu in court to be a person from whom seizure was effected and though they told the name of the other suspect Nidhu Bag they could not identify the said Nidhu Bag in court. They were also not placed in the T.I. Parade as it was not necessary. The learned trial court rightly acquitted Nidhu Bag because of the fact that neither P.W. 1 nor P.W. 2 nor P.W. 16 identified Nidhu Bag in the court. Therefore, rightly though he was allegedly the co-possessor of gold ornaments he could not be convicted. Seizure of gold ornaments from the possession of Sukumar @ Banchu Laha has been proved to the hilt. Apart from seizure of gold ornaments from Sukumar @ Banchu Laha in presence of P.W. 1 and P.W. 2 by P.W. 16 he was also identified in the T.I. Parade and also before the court. The question arose as to nonidentification of the ornaments by the members of the complainant's family as it has been argued that the female members of the house were not examined so as to have the ornaments identified. But such argument is of no avail as P.W. 9 and P.W. 12 identified Mat. Ext. I and II to be the ornaments belonging to Binapani, wife of P.W. 9 and her daughters Chandana and Alpana, the sisters of P.W. 12 and their evidence has further been corroborated by the P.W. 3 and P.W. 4. It could not be established by any amount of cross-examination that no seizure was effected of the gold ornaments from Sukumar Laha, nor it could be the case of the appellant Sukumar that the ornaments belonged to him. Therefore, one pillar of the prosecution case, namely seizure of the gold ornaments (Mat. Ext. I and II) from the possession of the appellant Sukumar Laha could be well established, no matter whether Sukumar could or could not be seen at the time of the commission of dacoity by the members of the complainant's family. The second pillar of the prosecution case centres round the apprehension of Haladhar Nandi at the time of the incident. The manner in which the incident took place has been given vivid description of by P.W. 3, P.W. 4, P.W. 9, P.W. 12 and P.W. 13. Their evidence has been corroborated by P.W. 5, P.W. 10 and P.W. 11. It has come out more convincingly that Haladhar Nandi was apprehended by P.W. 4 and P.W. 12 in course of fight with the dacoits. Now, with respect to the apprehension of Haladhar Nandi there is a defence case put to P.W. 3 in crossexamination and put by D.W. 2, the nephew of the appellant Haladhar Nandi. It is that Haladhar deals in potato, as P.W. 3 deals in the same commodity. There were transactions between the two. In order to settle the transactions Haladhar who is said to own about 10 or 12 bighas of land came to the house of P.W. 3 with D.W. 2, but while D.W. 2 returned back to his house Haladhar could not, as the accounts could not be settled, and instead Haladhar has been implicated falsely in this case. This defence story carries with it the least degree of probability. Not a chit of paper has been produced by the defence to show that Haladhar has 12 bighas of land, or that Haladhar carries on business of potatoes, or that Haladhar has commercial transaction with P.W. 3. The fact of the matter is that it was not Haladhar who alone came to commit dacoity. Nidhu Bag was one of the miscreants who sustained in the hands of the complainant party stabbed injury and though Nidhu Bag was acquitted his sustaining injury in course of the same incident bolstered the prosecution case that Haladhar was apprehended in course of commission of the dacoity which was committed by a group of people coming from different areas and while the rest of the members of the gang managed to escape Haladhar could not. Haladhar's house is at a distance of 50 km. from the house of P.W. 3 and it could not be established at all that there was at all any business transaction between P.W. 3 and Haladhar or that Haladhar was known to P.W. 3 since before the incident. Therefore, the charge against Haladhar Nandi under Section 395 IPC could be well established.
23. It was argued that he was not placed in the T.I. Parade. His placement in the T.I. Parade was not necessary because he was got caught handed by the members of the complainant's family and was detained for a number of hours whereafter he was made over to the police with the lodging of the FIR.
24. The third pillar of the prosecution case which rests with identification of some of the accused persons and appellants in the T.I. Parade could not be proved legally. It is the consistent view of Allahabad, Calcutta and Patna High Courts that Chart or Memo of Identification proceedings held and prepared by the Magistrate cannot be admitted in evidence unless it is proved. It appears that two Magistrates who held T.I. Parade on three days, namely 13th April, 1982, 21st April, 1982 and 23rd September, 1982 were not examined and the identification proceedings were not proved by the Magistrate who held such T.I. Parade in respect of the appellant Astam Hembram and Bistu Duley. T.I. Parade conducted by P.W. 15, Dilip Kumar Basu, Judicial Magistrate does not relate to the appellants Bistu Duley and Astam Hembram. These two appellants are said to have been identified in the T.I. Parade conducted on 21st April, 1982 and 23rd September, 1982 by a Magistrate who has not been examined and the proceedings of identification has not been proved by him. Identification of the appellant Sukumar Laha @ Banchu in the T.I. Parade conducted by P.W. 15 is also of no legal value because of the fact that the Magistrate who was examined did not prove the identification proceeding or chart through his evidence. Division Bench decision of this Court in Kanai Sheet and Ors. v. State 1984 Cr.L.J. 527 held that memorandum of identification proceeding held by a Magistrate acting under Section 164 Cr.P.C. is not admissible without proof. This decision approved of the Full Bench decision of Allahabad High Court in Sheoraj v. State : 1964CriLJ1 wherein it was held that the memorandum of identification proceeding held by a Magistrate under Section 164 Cr.P.C. is not admissible without proof and Section 80 of the Evidence Act does not apply to such memorandum and it requires to be proved through evidence. The Patna High Court in Ramadhar Chamar and Ors. v. State of Bihar 1986 Cri. L.J. 684 held that where a chart of test identification is not proved by the Magistrate who held the T.I. Parade such report cannot be said to be the evidence of identification. In the instant case in respect of two identification parades the Magistrate has not been examined at all while in respect of the other the Magistrate was examined but the proceeding was not admitted in evidence through the evidence of the Magistrate. This being so, conviction of Astam Hembram and Bistu Duley solely on the basis of the purported identification by the witnesses cannot be sustained, but the case of Sukumar Laha @ Banchu stands on a different footing. Though Sukumar Laha @ Banchu was identified in the T.I. Parade, such identification is not the sole basis of the prosecution case. It was from whom that gold ornaments were seized by P.W. 16 in the presence of P.W. 1 and P.W. 2 in the early morning of 27th of March, 1982 at Ghatal-Moirapukur Crossing. Further, P.W. 1 and P.W. 2 identified Sukumar Laha @ Banchu before the court to be a person from whom seizure was effected, and thirdly the gold ornaments which were recovered from the possession of Sukumar Laha @ Banchu were identified by P.W. 1, P.W. 2, P.W. 3, P.W. 4, P.W. 9, P.W. 12 and P.W. 13. In the circumstances, conviction of Sukumar Laha @ Banchu has to be altered to Section 412 IPC though he was charged under Section 395 and also separately under Section 412 IPC. In ultimate analysis conviction against Bistu Duley and Astam Hembram cannot be sustained. Conviction against Sukumar Laha @ Banchu has to be altered to one under Section 412 IPC in respect of which charge has already been framed and on the basis of which trial has been held. So far as Haladhar Nandi is concerned, his conviction under Section 395 IPC has to be sustained.
25. Accordingly, the appeal is allowed in part.
26. Conviction under Section 395 IPC recorded against the appellant Sukumar Laha @ Banchu is altered to the one under Section 412 IPC and he is found of guilty of offence on account of that charge.
27. Conviction and sentence as recorded against Bistu Duley and Astam Hembram is set aside. They are found not guilty of the offence punishable under Section 395 IPC and they are acquitted of the charge and be set at liberty. As regards sentence against Haladhar Nandi and Sukumar Laha @ Banchu I find that the learned trial court has passed sentence of imprisonment of only four years against them on account of the charge under Section 395 IPC. I do not think that the sentence has been excessive. Their sentence to the extent of R.I. for 4 years is maintained with modification that Sukumar is sentenced on account of the charge under Section 412, IPC.
28. A copy of the judgment shall be sent to the learned Additional Sessions Judge, 1st Court, Midnapore (now Paschim Medinipur) for information and necessary action. The two convicts i.e. Haladhar Nandi and Sukumar Laha who are on bail shall surrender to the learned Additional Sessions Judge, 1st Court, Midnapore within 30 days from the date of this order failing which the learned Additional Sessions Judge shall take appropriate steps to apprehend the two convicts who are on bail so that the sentence is got executed in accordance with the law.
29. Criminal Sections are directed to send down the L.C.R. immediately.