The Calcutta High Court dismissed the appeal [S.T No.1(8)2000/SC 56(2) 1999] filed by the appellants (convicts) against the judgment and order of conviction and sentence under Section 392/397 of the Indian Penal Code.
Facts of the case:
The complaint, under Sec. 392/397, IPC and Sec. 25(1B) (a) under Arms Act was registered against two unknown accused persons based on a statement made by Biswajit Dey that on 27th February 1997 at about 11 am while going to the bank to deposit a sum of Rs.65,000/- (as a pay-in-slip) in a Rexine bag, he was attacked by a person from behind with sharp cutting weapon and sustained certain injuries and one well-built person wearing a blue coloured pant and a T-shirt forcibly took away his money bag.
The de facto complainant, Biswajit Dey shouted and chased them. One of the miscreants who took shelter inside a garment shop with a revolver and the stolen bag was apprehended by the locals and the informant was subsequently taken to Nil Ratan Sarkar Hospital where the medical officer confirmed sharp cutting injuries on his left ear, right of the face, right forearm, back and head.
The accused duly faced trial after the police investigation and the Judicial Magistrates, conducted a test identification parade in respect of two appellants. Thence, both appellants were convicted under Section 235(1) of the Code of Criminal Procedure for the offence punishable under Section 392 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 7 years each and to pay a fine of Rs.50,000/- each in default to suffer further rigorous imprisonment for six months and under Section 397, IPC, to suffer further rigorous imprisonment for a term of 7 years concurrently.
The learned counsel for appellant no.1, assailed the test identification parade mainly on two grounds: firstly, the physical feature of the appellant no.1 was not stated by the informant at the first possible stage (under sec 154, Cr.P.C.) and secondly, the truthfulness of the T.I. Parade of the appellant was questioned on the ground of inordinate delay.
Further, the learned advocate submitted a series of decisions of the Hon’ble Supreme Court where a conviction was set aside as a result of improper test identification parade and contented that identification of appellant Md. Jamal by PW-3 Biswajit Dey must be held suspicious and plead that the appellant should be acquitted and the order of conviction and sentence ought to be set aside.
Learned Advocate for the appellant no.2 argued that the penal provision of the said conviction didn’t attract sec. 397 of IPC as it requires ‘use of any deadly weapon’ and there was no evidence that the accused had used the said revolver at the time of committing the robbery. Injuries sustained were caused by a sharp cutting weapon and the same wasn’t recovered from appellant no.2. Thus, the learned trial judge committed error in judgment in convicting the appellant no.2 under sec. 397 of IPC.
Furthermore, Learned Advocates for both the appellants lastly contended that the appellants have suffered sentence for a certain period and thus, the order of sentence may be reduced up to the period for which they have undergone sentence.
The Hon’ble Justice Bibek Chaudhuri observed that in the instant case, the accused was arrested on 1st September 1997 and his T.I. The parade was conducted on 3rd October 1997. Thus, the investigating authority had no occasion to produce accused in T.I. Parade before his arrest. Thus, holding of T.I. Parade after a lapse of about eight months from the date of the incident is not an arguable proposition in law under the facts and circumstances of the case.
Also, the identification of accused in court during trial is the substantive evidence and such identification was not questioned in course of cross-examination of PW3. Further, there was no submission on the point of the sentence of appellant no.2 under Section 392, IPC. The weapon with which the appellant no.2 was armed was within the vision to be capable of creating terror in the mind of the victim (quoted as recorded by the learned trial judge)., that would be sufficient to satisfy the word “uses” for Section 397 of the I.P.C. Furthermore, the court remarked that in the instant case the learned Counsel for the appellants has not submitted adequate and special reasons in support of their prayer for reduction of sentence suffered by the appellants.
The Hon’ble Court held that no infirmity is found in the impugned judgment on careful perusal and consideration of the same with the evidence on record and arguments advanced by the learned Counsels.
Thus, the instant appeal was dismissed on contest without cost and the conviction and order of sentence passed by the learned trial judge in ST No.1(8)2000/SC 56(2) 1999 is affirmed.
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