Parameswar Lal Soni vs The State of West Bengal

Partha Sakha Datta, J.—In Sessions Case No. 47 of 2000 (Sessions Trial No. 2 of August 2000), the learned Sessions Judge of the 8th Bench of the City Sessions Court, at Calcutta by judgment and order dated 2709-2002 convicted the appellants, Sahid Ali and Jhangir Hossain u/s 395 of the Indian Penal Code, another accused Ramesh Singh @ Loton Singh and the appellant Parameswarlal Soni u/s 412 of the Indian Penal Code and sentenced Sahid Ali and Jahangir Hossain to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 5000/- in default to suffer rigorous imprisonment for one year each on account of the charge u/s 395 of I.P.C. and sentenced Parameswarlal Soni and Ramesh Singh @ Loton Singh to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 5000/- in default to suffer R.I. for one year each on account of the charge u/s 412 of the I.P.C. It is this judgment and order of conviction and sentence passed against the aforesaid four persons, of whom Remesh Singh @ Loton Singh is not the appellant herein, that three appellants as above have assailed this judgment in this appeal on varieties of grounds.

One Ranjan Ojha, an employee of Dinesh Kabra was directed by his employer to collect Rs. 1 lac from his brother Naresh Kabra of 14/2 Old China Bazar and Rs. 4 lakhs from one Suresh Saraf of 6, Lyons Range. Thus, Ranjan setout at 4 p.m. on 7.03.2000 to collect the monies from the two aforesaid persons and after collecting the same he was about to proceed to 22, Nanilal Street, the seat of the employer and when he came near the crossing of Braborne Road and Sukhias Lane the appellants along with one Tony Anthony, since deceased, intercepted Ranjan identifying themselves as officers of the Customs Department and forcibly got him into a stationary taxi and fled away from the place of occurrence and after snatching away his bag containing a cash of Rs. 5 lakhs forced Ranjan out of the taxi at Topsia Road (South) at about 5.00 p.m. The miscreants had with them mobile phones. Being robbed of the money on being assaulted, Ranjan came to Topsia Police Station and lodged a FIR against the miscreants. Upon completion of investigation charge sheet was submitted u/s 170/395 of the I.P.C. and the learned Judge framed charges under those sections of the law and upon conclusion of trial convicted two appellants u/s 395 of the I.P.C. and two others u/s 412 of the I.P.C. and passed sentence as above. The learned Judge did not find that charge u/s 170 of the I.P.C. could be made out as it could not be ascertained as to which of the miscreants posed himself as officer of the Customs Department.

The FIR-maker Ranjan Ojha, however, could not be examined by the prosecution because according to Ranjan''s employer Dinesh Kabra (P.W.1) Ranjan who had joined his service only a few months before the incident left the job on 21.07.2000 after taking away Rs. 3 lakhs. Ranjan''s alleged leaving the place of employment after taking away Rs. 3 lakhs is not the issue here, but then an important witness, no other than the FIR-maker himself who was the person robbed of could not be examined by the prosecution and the FIR has been proved by his employer P.W.1, Dinesh Kabra who, of course, translated into his evidence the incident alleged in the FIR.

Dinesh Kabra says that his brother asked him to buy silver for him but had with him Rs. 1 lakh only. He sent Ranjan to Naresh at 14/2 Old China Bazar to bring 1 lakh from Naresh and Rs. 4 lakhs from Suresh Saraf to whom the said Rs. 4 lakhs was agreed to be returned on the very same day which was 7.03.2000. Thus, Ranjan departed from the place of business of P.W. 1 for collection of money at 4.40 p.m. A person rang him (P.W. 1) over his mobile phone being No. 9830087657 enquiring from him whether he had sent Ranjan Ojha to collect money and informing him further that Ranjan had been caught by the customs officers. The telephone line was thereafter disconnected. P.W.1 again rang back the caller as the caller''s mobile no as was reflected in his mobile was 9830053673. The caller replied that he would be informed of Ranjan later and again disconnected the phone. As evidence of P.W. 21, Joyjeet Mukherjee discloses this telephone No. 9830053673 belonged to fifth accused Tomas Anthony who died during the pendency of the criminal proceeding. However, at about 5.15 p.m. Ranjan rang him (P.W. 1) crying that he had been dropped at a place near E.M. Bypass after being thrown out on the road from a taxi on being robbed of the money by some miscreants. P.W.1 proceeded to Tiljala Police Station, then to Karaya Police Station and then to Topsia Police Station where he came to know that Ranjan had already been there and lodged an FIR. Meanwhile, a police officer after registration of the case had left for the place of occurrence with Ranjan Ojha which was the crossing of Braborne Road and Sukhias Lane. Ranjan again returned to the police station and narrated the incident to P.W.1 who was then at the police station itself. It was the version of Ranjan as told by P.W.1 that when he was at Ganerwal petrol pump at the crossing of Sukhias Lane and Brabourne Road the miscreants forced him in a taxi and snatched his canvas bag containing the money. During investigation the canvas bag was recovered and was identified by P.W.1. The police also seized mobile phone of P.W.1 under a seizure list. Cross-examination of this witness did not reveal any tangible material because he simply narrated the prosecution case and in fact corroborated the version in the FIR. He was not a witness to the recovery of the booty, nor was he in a position to identify the booty, meaning cash during trial. Therefore, his evidence just is a translation of the prosecution case as made out in the FIR and nothing more save identification of the bag said to have contained money.

P.W.2, Rakesh Kumar, sells chappal in front of Generwal petrol pump near the crossing of Sukhias Lane and Braborne Road and he narrated the prosecution story telling that at 4.30. p.m. when he was at the shop a taxi stopped in front of his shop with four persons seated therein and when a person was coming out from Bikaner Chand market all the four persons came out of the taxi and slapped that person 3-4 times and meanwhile another person with a mobile phone joined those four persons and forced the victim into the taxi and went away. At about 7.30 p.m. when police came to his shop he narrated the incident to the police and 10-15 days after the incident he identified three miscreants in the T.I. Parade before the Magistrate. But during trial he identified only Jahangir Hossain and Sahid Ali to be the persons who intercepted the victim. There was cross-examination of this witness by Jahangir Hossain and Sahid Ali and it was the defence case in cross-examination of this witness that no incident occurred and he did not identify any suspects at all and the suspects were shown to him at police headquarters. Thus evidence of P.W.2 is but fortification of the prosecution case as made out in the FIR and as was testified to by P.W.1.

P.W.3, Raj Kumar Sharma was witness to the recovery of Rs. 1 lac (500 X 200) and a mobile phone from the appellant Paremswarlal Soni on 9.03.2000 by the police at 39 Sibtala Street. He identified two bundles containing the seized money. According to him, Paremswarlal Soni drew out two bundles of 500/- note from the iron chest, counted the notes, and made over the same to the police. The place wherefrom this recovery was effected against Parameswarlal Soni is a shop of his brother Prakash Chand Soni. It was the defence suggestion to this witness that he signed the seizure list at the Lal Bazar Police office which he denied. It appears from Ext. 5 that he also was a witness to the seizure of mobile phone No. 9830053674 from Parameswarlal Soni.

P.W. 4, Sri G. Mahato is also a witness to the seizure of Rs. 1 lac against Paremswarlal Soni and is a significant witness corroborating P.W. 3. It was P.W.24 the last I.O. of the case who effected seizure against Paremswarlal Soni and we will come to consider in details the evidence of P.W.24 in the sequel. Thus it could be the prosecution evidence against the appellant Paremswarlal Soni that a part of the booty namely Rs. 1 lac (Rs.500/- X 200) which was made over to Ranjan by Naresh Kabra was recovered against him.

Evidence of P.W.5, Mohammad Taiyab Khan, a fruit seller near the tramline at Marquis Square is with respect to the seizure of certain amount of money of 50 rupees denomination and 100 rupees denomination totaling Rs. 2,20,000/- from inside a tyre shop at premises NO. 43 of a street which he does not know. He proved the bag containing the money (Mat. Exhibit I). Further, he proved the seizure list (Exhibit 7/1, 7/2, 7/3). He also signed on the seizure that in respect of mobile phone (Ext. 8). He identified and proved his signature on the paper packets (Mat. Ext. VIXI) containing the money. He further proved his signature on the front note of each of the bundles. Now much criticism has been levelled against this witness because according to the learned defence counsels if the alleged seizure of Rs. 2,20,000/-as spoken of by P.W.5 is taken into account then the total quantum of seizure would exceed Rs. 5 lakhs which was only the money that was robbed of. This is not so. However, this witness, P.W.5 does not identify the person as to from whom the seizure was said to have been effected. This is why this witness was not cross-examined at all by the defence and in fact, there is no evidentiary value of this witness save the fact that he was a witness to the seizure of Rs. 2,20.000/- from a premise at 43 and which as per seizure list is 43, Rafi Ahemad Kidwai Road. In fact this is the seizure of Rs. 2.20 lakhs on 10.03.2000 made from Thomas Anthony who is dead.

Thomas Anthony''s nephew is P.W.6, Wilfred Lawrence, and expectedly to save his uncle he turned hostile and was cross- examined by the prosecution and in course of cross-examination by the prosecution he identified twenty bundles of 50 rupees note and 12 bundles of 100 rupees denomination note (Material Exhibit V XI series) and also the mobile phone of his uncle. This witness P.W.6 also signed the seizure list.

P.W.7, Nizamuddin testifies to the seizure of Rs. 60,000/(Rs. 100 x 600) against the appellant Sahid Ali on 15.03.2000 from the premises No. 34A, Raibahadur Road, Behala.

P.W.8 Taslim Ahmed is also a witness corroborating the seizure of Rs. 60000/- from the possession of Sahid Ali (Mat. Exhibit XIII series) on 15.03.2000. He also signed the seizure list (Exhibit 9/2).

P.W. 9, G.C. Mondal, an owner of a grocery shop at S.N. Road is a witness to the seizure of (Exhibit 10/1) some hundred rupee denomination notes (Mat. Exhibit 14). This witness fails to say as to from whom the seizure was effected.

P.W. 10, Biswadeep Biswas, a clerk of Lokenath Saraf says that when he gave Rs. 4 lakhs to Ranjan Ojha he put his initial on the front note of each of the bundles and he proves his signature on the first note of each of the bundles of hundred rupee denomination (Rs.100 x 1200) and (Rs.50 x 2000). Suggestion was made to this witness by the defence that he singed on the bundle of the notes at the police station which he denied. This evidence of P.W. 10 is directed mainly against Tony Anthony.

P.W. 11 Suresh Kumar Saraf says in his evidence that under his instruction P.W. 10 handed over Rs. 4 lac to Ranjan Ojha and a receipt was prepared along with a photocopy of the same duly signed by him and Mr. Ranjan Ojha. He proves his signature on the receipt (Mat. Ext. XI/V). He further proves the signature of Ranjan Ojha on the receipt (Mat. Ext. XI/VI). He further says that the original receipt was given to Ranjan Ojha and the photocopy was retained by him and he also proved his signature as also of Ranjan Ojha on the photocopy of the original (Mat. Ext. II). He proves the computerized account book from 01-03-2000 to 08-03-2000 of his business account to show that on 07-03-2000 he made over Rs. 4 lac to Ranjan on being requested by Dinesh Kabra. He further says that on the same day Naresh Kabra, brother of Dinesh Kabra refunded the loan to him.

P.W. 12 is Mr. Sudip Neogi, the Judicial Magistrte who held T.I. Parade of the appellants. According to him, Ranjan Ojha identified all the accused persons, while P.W. 1 Rakesh Kumar identified Ramesh Singh @ Loton Singh, Sahid Ali and Jahangir Hossain. One Liakat Khan @ Nadir Khan identified Tony Anthony and Jahangir Hossain but the matter of the fact is that Liakat Khan and Ranjan Ojha have not been examined and though P.W. 2 identified Ramesh Singh, Sahid Ali and Jahangir Hossain before the Magistrate in the T.I. Parade he identified only Sahid Ali and Jahangir Hossain in the court.

P.W. 13 Mohammad Raju speaks of seizure on 15-03-2000 of some 100 rupee denomination notes in terms of the seizure list (Exbt. 14/1) but he does not say who was the person against whom seizure was effected. That is why he was not cross examined.

P.W. 14 Naresh Kabra says that he parted with Rs. 1 lac (500 x 200) on 07-02000 to Ranjan for purchase of silver and proves the original letter written and signed by him and handed over to Ranjan whereby he wrote to his brother that he was transmitting Rs. 1 lac through Ranjan to him (Exbt. 15). He further says that he paid to Suresh Saraf (P.W.11) Rs. 4 lac which Suresh on his behalf made over to Ranjan for the purpose of delivery to P.W. 1. Now importantly this witness proves the computerized version of cash book dated 07-03-2000 (Exbt. 16) showing the transaction.

P.W. 15 Tushar Kanti Ghosh, S.I. of Police says that on 1503- 2000 he was called to accompany S.I. Tapan Kanti Saha for the purpose of conducting a search in the premises No. 22A Beck Bagan Row led by the appellant Jahangir Hossain and the raid resulted in Jahangir bringing out a bundle of 100 rupee note from inside his almirah (Rs.10,000/-) which was seized by Mr. Saha as per seizure list (Exbt. 14/2). It was Jahangir Hossain who alone cross examined P.W. 15.

P.W. 16 is one Md. Gazi who speaks of seizure of Rs. 2,20,000/- from the premises No. 43, Rafi Ahmed Kidwai Road in terms of the seizure list (Exbt. 7) but he does not say in his examination-in-chief as to against whom the seizure was effected.

The seizure list wherein he signed (Exbt. 3) relates to the seizure of Rs. 2,20,000/- against Tony Anthony.

P.W. 17 Sri Ram Ghosh, S.I. of Police says that on 09-03-2000 he accompanied S.I. Tapan Saha (P.W. 24) to premises No. 39, Sibtala Street under Posta P.S. at 5-15 p.m. being led by the appellant Parameswar Lal Soni who brought out two bundles of 500 rupee notes from inside the chest in the shop room and made over the same to P.W. 24 who then prepared a seizure list wherein he signed (Exbt.6/C). This witness was cross examined only by the appellant Parameswar Lal Soni and suggestion was to the effect that nothing was seized from the possession of the appellant Parameswar Lal Soni. Further it was the evidence of P.W. 17 that from the possession of Parameswar Lal Soni a mobile phone was seized.

P.W. 18 Lakshi Kanta Biswas, S.I. of Police again is a witness to the seizure of Rs. 2.20 lac (Exbt. 7) and a mobile phone but he does not say as to who was the accused against whom the seizure was made. He, of course, says that the search was conducted at premises No. 43, Rafi Ahmed Kidwai Road and the seizure list relates to seizure from Tony Anthony.

P.W. 19 Tapan Kumar is S.I. of Police whose evidence is related to P.W. 7 and P.W. 8 in respect of seizure of Rs. 60,000/against the appellant Sahid Ali at S.N. Roy Road. He accompanied the officer of the Detective Department of Lal Bazar being led by the appellant Sahid ali to premises No. 42/1/1A S.N. Roy Road whereat the accused collected a bunch of key from his wife, opened the wooden almirah and brought out six bundles of 100 rupee denomination notes. Seizure was made under seizure list (Exbt. 9).

P.W. 20 Narayan Chandra Sarkar is a witness to the seizure of Rs. 10,000/- of 100 rupee denomination from the possession of the accused Ramesh Singh on 18-03-2000 at 7/1 S.N. Chatterjee Road. According to his evidence it was the accused Ramesh Singh who led the police party to the premises No. 7/1 S.N.Chatterjee Road and brought out the money. This witness signed in the seizure list (Exbt. 10/2) and this seizure shows recovery by P.W. 24 on being led by the accused Ramesh Singh of Rs. 10,000/- on 18-03-2000 between 14-50 hrs. and 15-20 hrs.

P.W. 9 Gopal Chandra Mondal is a witness relating to this seizure against Ramesh.

P.W. 21 Joyojit Mukherjee is senior Executive of Usha Martins Telecom Ltd. which is the service provider of mobile telephones under the brand name "Command". This witness supplied the following particulars of the subscribers of his company after taking out a computer print of the record of callers and receivers. The particulars are 9830053673 was registered in the name of appellant Tony Anthony, 9830053674 stood in the name of appellant Parameswar Lal Soni and 9830087657 belongs to Usha Electronics as subscriber and according to P.W. 1 this number 9830087657 was his mobile phone number. This witness proved the report (Exbt. 18). Not much of cross examination was made of this witness.

P.W. 22 is Tulshi Charan Singha, the first I.O. of the case who after drawing up the formal FIR (Exbt. 1/C) proceeded to 1, Topsia Road whereat Ranjan Ojha was pushed out of the vehicle by the miscreants and then proceeded to the crossing of Brabourne Road and Sukhias Lane and again recorded the statement of Ranjan Ojha at that place and further recorded the statement of P.W. 2 Rakesh Kumar and one Liakat Khan who was, of course, were not examined. He prepared a rough sketch map of the place of occurrence. It appears from his cross examination by the defence that premises No. 1 Topsia Road is one kilometer off Topsia Police Station and that formal FIR was drawn up at 7-20 hrs.

P.W. 23 Pulak Kumar Dutta, S.I. of police is also another I.O. but his evidence is of no use.

P.W. 24 is really the principal I.O. of the case who recorded statements of Sahid Ali, Jahangir Hossain, Tony Anthony, Parameswarlal Soni and Ramesh Singh and pursuant to their statements leading to recovery u/s 27 of the Evidence Act he recovered 1 lac from Parameswarlal Soni, Rs. 2.20 lac from Tony Anthony, Rs. 60,000/- from Sahid Ali, Rs. 10,000/-from Jahangir Hossain and Rs. 10,000/- from Ramesh.

In the context of the evidence of the above 24 witnesses the three appellants i.e. Jahangir Hossain (CRA No. 455 of 2002), Sahid ali (CRA No. 25 of 2003) and Parameswar Lal Soni (CRA 454 of 2002) in their three separate appeals advanced common points which may now be discussed. It was argued that Ranjan Ojha''s FIR could not be given any amount of credence because in the latter part of the month of July 2000 this person in terms of the evidence of P.W. 1 decamped with some 3 lakhs of rupees of the employer and secondly the said Ranjan Ojha has not been examined so that the particulars in the FIR could not be corroborated by the FIR-maker; and where the FIR has not been corroborated by the maker thereof it cannot be said that the prosecution case could be really proved to the hilt. This argument is not tenable. The occurrence took place on 07-03-2000 and Ranjan Ojha left the employment under P.W. 1 on 21-07-2000. His leaving the place of employment for his native village about five months after the incident does not have any correlation so far as the merit of the prosecution case is concerned. Ranjan Ojha''s taking with him 3 lakhs of rupees at the time of his departure from the place of employment is a matter between him and P.W. 1 and this cannot be the ground to say that the prosecution evidence in relation to seizure of 4 lakhs rupees from five accused persons is all false or untrue because of the alleged conduct of Ranjan. The factum of seizure has to be tested with reference to evidence of the witnesses and Ranjan Ojha was not a witness to any of the five seizures effected from five accused persons. Prosecution''s non-availability of Ranjan Ojha can hardly be on the facts and circumstances of the case a factor for viewing the prosecution case with suspicion because the incident narrated in the FIR has been corroborated by P.W. 1 in all material particulars. P.W. 1 receiving telephonic call through the mobile of Tony Anthony, identity of the caller of the mobile to be Tony Anthony being established through P.W. 21, the service provider of the mobile telephones, Ranjan telephoning P.W. 1 after he was pushed out of the vehicle at 1, Topsia Road (South) and after he was robbed of, Ranjan''s meeting with P.W. 1 at the police station, and all related particulars have been translated into evidence by P.W. 1. Therefore, non-examination of Ranjan Ojha which is not deliberate at all does not upset the prosecution case. Similarly, non-examination of Liakat Ali who allegedly was a witness to the interception of Ranjan by the miscreants at the crossing of Sukhias Lane and Brabourne Road and his identification of the accused Tony Anthony and Jahangir in the T.I. Parade does not weaken the prosecution case because the part of the story of the prosecution case which Liakat Khan @ Nadir Khan was supposed to say in court has been vividly testified to by P.W. 2 and P.W. 2''s evidence to that effect which we have reproduced above could not be demolished by any amount of cross- examination. Non-examination of Liakat Khan @ Nadir Khan by the prosecution can hardly be said to be deliberate withholding of evidence by the prosecution. It was argued by the learned advocates for the three appellants that in the FIR the defactocomplainant did not give physical features of the miscreants and accordingly identification of the miscreants in the T.I. Parade can hardly have any value in the eye of law. The argument is misplaced and it could have carried a force if Ranjan Ojha was examined in the court as a witness. His non-examination by the prosecution because of his departure from the place of employment leaves no importance of his identification of five accused persons in the T.I. Parade. P.W. 2 is the only person who could be able to say in his evidence before the court that he identified Jahangir Hossain and Sahid Ali in court. In fact, he was the lone witness available who could identify before the Magistrate in the T.I. Parade Ramesh Singh @ Loton Singh, Sahid Ali and Jahangir Hossain @ Mohammad Hossain. His non-ability to identify Ramesh Dingh @ Loton Singh in the court cannot give rise to any reasoning that he really did not identify Sahid Ali and Jahangir Hossain in the T.I. Parade and by no amount of logic can it be said that before the learned Magistrate (P.W. 2) certain fictitious persons were produced for identification of the five accused persons and that P.W. 2 was not produced for identification of the suspects in the T.I. parade. Thus identification by P.W. 2 of Jahangir Hossain and Sahid Ali admits of no doubt and this P.W. 2 is not the FIR maker. Therefore, P.W. 2 had no scope to describe the physical features of the suspects before he was placed in the T.I. parade along with the other witnesses. The argument of the appellants was that the court should disbelieve the so-called identification by P.W. 2 of the three accused persons in jail as no such identification could assume any importance because T.I. Parade was held after recovery was made and there was ample scope for the prosecution to bring P.W. 2 to the police station so as to enable him to see there the suspects. It is quite possible to advance the argument but it is difficult to accept the same because evidence and circumstances of the case do not suggest that P.W. 2 was taken to police station for the purpose of identification. The matter of the fact is that P.W. 2 is not a stranger to the place of occurrence, for he has his own shop in front of the petrol pump at the crossing of Brabourne Road and Sukhias Lane where the occurrence had taken place. Therefore it was not impossible for P.W. 2 to see the occurrence. He was interrogated and examined by the police on the very same day at 730 p.m. Therefore, in absence of any material convincing it cannot be held but P.W. 2 was taken to the police station to have a glimpse of the accused persons since when they were in judicial custody. Moreover, since long before T.I. Parade was held the suspects had been in the judicial custody. Furthermore, P.W. 2 was not a witness to the recovery of the monies from five accused persons. Importantly, though P.W. 2 identified three suspects in jail, because of passage of the time he could be able to identify only two out of the three suspects and his evidence appeared to be quite natural. The point was taken that P.W. 2 claimed that T.I. Parade was held at 10-30 a.m., while the Magistrate says it was held at 3 p.m. This argument could be accepted only when it is accepted that a person in the name of P.W. 2, and not P.W. 2 himself, was produced before the Magistrate at the T.I. Parade. Since such a dangerous presumption is not permissible particularly when the circumstances do not dictate such presumption it cannot be said that a fictitious person in the name of P.W. 2 was produced for identification. T.I. Parade was held on 30-03-2000 while evidence of P.W. 2 was recorded a year thereafter. It may not have been possible for P.W. 2 to remember the exact hour of holding of T.I. Parade. This is not a significant contradiction. It was argued that P.W. 2 did not say that Ranjan Ojha was carrying cash in his bag which was taken forcibly by the miscreants. This could not have been the evidence of P.W. 2 because it was not possible for P.W. 2 to say or to know beforehand that the person who was coming out from the Bikaneer Market was carrying 5 lakhs of rupees in his bag and the miscreants would take away the bag. The miscreants took away the bag after Ranjan Ojha was pushed out of the taxi by the side of premises No. 1 Tapsia Road (South) when P.W. 2 was not present. What was possible for P.W. 2 to notice has been described by P.W. 2 before the court and he cannot be expected to say certain events which it was impossible for him to see. Therefore, conviction of Jahangir Hossain and Sahid Ali u/s 395 of the IPC on the basis of the statement of P.W. 2 has not been illegal and such conviction has further been fortified by recovery of Rs. 10,000/from the possession of Jahangir Hossain on 10-03-2000 at 22A Beck Bagan Road and Rs. 60,000/-on 15-03-2000 from Sahid Ali at Rai Bahadur Road. It was argued that the witnesses are unspecific in narration of facts, vague in the description of the offence and when the description is wedded to ambiguity there cannot be finding of guilt. This argument is by itself a vague one, suffers from lack of specificity as it has not been said as to which witness lacked clarity of expression. Witnesses are basically of three groups. In the first group falls P.W.1, P.W. 2, P.W. 10, P.W. 11 and P.W. 14. In the second group in relation to recovery of monies there are witnesses, to wit, P.W. 3, P.W. 4, P.W. 5, P.W. 6, P.W. 7, P.W. 8, P.W. 9 and P.W. 13. The rest are police officers who conducted search and seizure. The witnesses of each category have confined themselves to that part of the prosecution case to which they were witnesses and they did not travel beyond what they have seen. It is argued for the appellant Parameswar Lal Soni that he was acquitted of the charge u/s 395 of the IPC because he could not be identified by P.W. 2 at the trial and/or before the Magistrate at the time of T.I. Parade but then the important fact is that against Parameswar Lal Soni there was effected recovery of Rs. 1 lac on 09-03-2000 and his mobile phone being 9830053674 at 39 Sibtala Street. Therefore, acquittal of the charge u/s 395 of the IPC in favour of accused Parameswar Lal soni does not liquidate the chapter of recovery of Rs. 1 lac just a day after the incident from his premises at 39, Sibtala Street. It is important to note that Tony Anthony''s mobile No. 9830053673 is just a digit preceding the number of Parameswarlal Soni. The argument of the learned advocate for Parameswarlal Soni that the prosecution could not establish beyond reasonable doubt that the mobile phone bearing No. 9830053674 belonged to him is not acceptable for two reasons. Firstly, that was the mobile No. which was recovered from Parameswar Lal Soni and the evidence of P.W. 21, the official of telephone service provider who proved through Exbt. 18 the record of callers and receivers taken out from the computer is clearly unassailable. It has been submitted by the learned advocate for the State not without justification that Tony Anthony and Parameswarlal Soni obtained their mobiles from the same service provider and almost at the same time or else they could not be allotted numbers serially just one after the other. It is true that on the mobile of P.W. 1 (9830087657) the mobile of Parameswarlal Soni was not reflected meaning thereby parameswarlal Soni was not the caller to P.W. 2 but the recovery of money and canvas bag effected against Parameswar Lal Soni just a day after the incident speaks a volume which goes against him and proximity of his mobile No. to the mobile of Tony Anthony has fortified the prosecution case. The argument that there was no evidence on record that the premises No. 39 Sibtala Street under P.S. Posta wherefrom recovery was made of Rs. 1 lac pursuant to the statement of Parameswar Lal Soni did not belong to the accused is of no avail. It was a shop of Prakash Chandra Soni, his brother and as per evidence of P.W. 24 while in custody Parameswar made a statement pursuant to which P.W. 24 and other police officers were taken to 39 Sibtala Street wherefrom a recovery was effected. May be, the shop situated at 39 Sibtala Street belonged to Parameswar''s brother Prakash Chandra Soni but that does not demolish the factum of recovery as against Parameswar Lal soni as it was the latter who was the cause of recovery of Rs. 1 lac. P.W. 24 Tapan Saha, I.O. arrested Parameswar Lal Soni on 09-03-2000 and pursuant to his statement (Exbt. 21) recovery was made from him on that day itself. The source of arrest of Parameswar Lal Soni as has been said by P.W. 24 is a credible source information which P.W. 24 cannot be called upon to disclose and significantly there was no long time gap between the date of the incident and the date of recovery. Therefore, evidence of P.W. 24 which is supported by P.W. 3 and P.W. 4 cannot be rejected. P.W. 3''s evidence cannot be said to be vague or unspecific. He is a man of the locality wherefrom the seizure was made and P.W. 4 Ganesh Chandra Mahatma also corroborated P.W. 24 in all material particulars. Both P.W. 3 and P.W. 4 are very explicit and vivid in narrating the story of recovery from Parameswarlal Soni of two bundles of 500 rupee notes and it is in evidence of P.W. 11 Naresh Kumar Kabri that he delivered to Ranjan Ojha Rs. 1 lac in 500 rupee denomination. P.W. 14 further proved a letter written to his brother P.W. 1 to the effect that through Ranjan Ojha he was remitting Rs. 1 lac and this letter has been marked (Exbt. 15). So far as Jahangir Hossain is concerned it appears from evidence of P.W. 24 that pursuant to source information Jahangir Hossain was arrested on 11-03-2000.

He was a resident of 22/A Beck Bagan Row and was remanded to police custody under the order of the learned CMM, Calcutta on 1203- 2000 and on 15-03-2000 both Jahangir Hossain and Sahid Ali were interrogated one after the other and Jahangir made a revealing statement regarding concealment of cash of Rs. 10,000/- said to be a portion of the booty at his residence at 22/A Beck Bagan Row and pursuant to his statement (Exbt. 3) recovery was made against Jahangir Rs. 10,000/- in terms of the seizure list (Exbt. 14). This seizure was made in presence of P.W. 13 Mohammad Raju and Golam Rasul. Of course, Golam Rasul has not been examined but that hardly affected the prosecution case. It is argued by the learned advocate for the appellant Jahangir Hossain that P.W. 13 did not say that recovery of Rs. 10,000/- was effected against Jahangir although he proved his signature in the seizure list. It is further submitted that this witness did not say that the money was recovered in his presence. The matter of the fact is that the another seizure list witness Gopal Rasul, as said by P.W. 13 his uncle. From the tenor of evidence of P.W. 13 it appears that he was not interested to tell in support of the prosecution although he could not avoid admitting his signature in the seizure list. But for that it cannot be argued that Jahangir Hossain has been framed by P.W. 24 unjustly and falsely. The statement of Jahangir Hossain goes to show that he told the I.O. that he would be able to lead the I.O. to his place where concealed cash of Rs. 10,000/ would be available. P.W. 2''s evidence has to be linked with evidence of P.W. 24 because P.W. 2 identified Jahangir Hossain in the T.I. Parade. Therefore, the argument of the learned advocate for Jahangir Hossain that upon the one bundle of 100 rupee note which was recovered against Jahangir there was no signature of P.W. 10 Biswadip Ghosh, clerk to Loknath Saraf or of P.W. 11 Suresh Saraf is of no avail because it is unexpected of P.W. 10 claiming that on each of the note of four lac of rupees he would sign which would be an absuirdity. It appears from the evidence of P.W. 24 that accused Sahid Ali also was interrogated along side Jahangir Hossain and Sahid Ali made a statement on 15-03-2000 (Exbt. 23) pursuant to which a cash of Rs. 60,000/- was recovered from the ground floor of the premises No. 42/1/1A, S.N. Roy Road and the said premises is the premise of the accused. This recovery as per seizure list (Exbt. 9) has been testified to by P.W. 7 Nizamuddin and P.W. 8 Taslim Ahmed, both of whom reside almost in the same place where the appellant Sahid Ali resides and both of them have proved material exhibit XIII/1 - XIII/7 and on the material exhibit they have proved their signatures also. Both of them have identified the appellant Sahid Ali to be the person against whom recovery was made. They are the natural witnesses to the recovery and there is no reason to say that Sahid Ali has been falsely framed by P.W. 24 just to be able to submit a charge sheet somehow or the other. P.W. 24 further has said in his evidence that another accused Ramesh Singh @ Loton Singh was interrogated on 18-03-2000 and pursuant to his statement (Exbt. 25) a cash of Rs. 10,000/- was recovered said to be a part of this stolen booty from the premises No. 7/1 S.N.Chatterjee Road and this recovery was made in the presence of P.W. 9 Gopal Chandra Mondal. Argument was that Gopal Chandra Mondal did not point out that such recovery was made against this particular accused and on the contrary Gopal''s statement was that at the instance of the police he signed the seizure list. Now the same reasoning can be said, as I said earlier in respect of P.W. 13, to the effect that not an iota of reason could be deciphered in support of the appellants'' proposition of falsification of police report in the form of a charge sheet against any of the appellants. It is common knowledge that now-a-days people have developed disinterestedness to be associated with prosecution in the matter of trial in a case of murder, dacoity, robbery and like that. P.W. 9 could not deny his signature in the seizure list and there is no reason to say that evidence of P.W. 9 should prevail over the vivid evidence of P.W. 24 and the simple ground that P.W. 24 is the I.O. of the case.

It is submitted that P.W. 16, a witness to the recovery of Rs. 2.20 lacs does not say as to from whom such recovery was made. We have had in evidence of P.W. 18 read with the evidence of P.W. 24 that P.W. 16 and P.W. 18 are the witnesses to the recovery of Rs. 2.20 lacs against the accused Tony Anthony who is dead. The points strenuously urged are that the evidence of P.W. 24 to the effect that the appellants made statements allegedly u/s 27 of the Evidence Act cannot be believed. In other words, it has been submitted that the statements of the appellants recorded by the I.O. said to be the statements u/s 27 of the Evidence Act are not to be relied upon and the evidence of recovery of monies consequently pursuant to such statements have no force in the eye of law. It has not been submitted as to why the statements i.e. of Parameswar Lal Soni (Exbt. 21), Tony Anthony (Exbt. 22) Sahid Ali (Exbt. 23), Jahangir Hossain (Exbt. 24) and Ramesh Singh (Exbt. 25) recorded by the I.O. u/s 27 of the Evidence Act on 09-03-2000, 10-03-2000, 15-03-2000 and 18-03-2000 respectively could not be relied upon. Their statements were lengthy but the entire statements have not been marked Exbt. and only that portion of the statement which comes strictly within the purview of Section 27 have been admitted in evidence. There is no earthly reason to say that the appellants as also the non-appellants did not make any statement. There is no earthly reason to say that no recovery was effected against them pursuant to the statements. Recovery of diverse sums of money was made within 10 days of the date of the incident. Recovery was not at a distant time and date. Unless the appellants made statements while they were in custody monies could not have been recovered. That mobile phone No. 9830053673 which was recovered against Tony Anthony belonged to him is evident not merely on account of recovery of the same from him but also from the evidence of P.W. 1, for it is in his mobile phone that mobile phone No. of Tony Anthony was screened. It was not suggested to P.W. 1 that he did not make this statement to the I.O. in relation to the mobile phone No. of Tony Anthony. The question raised was how the monies recovered from the appellants could be tagged with the money in possession of Ranjan Ojha because according to the defence Ranjan Ojha''s signature or the signature of P.W. 1 or of the persons from whom money was taken by Ranjan Ojha was not put to the notes recovered from the appellants. It appears from evidence Rs. 1 lac was recovered against Parameswarlal Soni, Rs. 2.20 lac against Tony Anthony, Rs. 10,000/- from Jahangir Hossain, Rs. 10,000/- against Ramesh Singh and Rs. 60,000/- from Sahid Ali. It is prosperous to argue that on all the heaps of notes there would be found signatures of any of the aforesaid persons as this is impossible to do so. The matter of the fact is that Exbt. 11/1 is the print out of the account from 07-03-2000 to 31-03-2000 of Loknath Saraf and this computer print reflects that on 07-03-2000 Rs. 4 lac was paid to P.W. 1. P.W. 14 has proved delivery of Rs. 1 lac in 500 rupee denomination to Ranjan Ojah on 07-03-2000 and together with that he has proved Exbt. 15, a letter to his brother sent through Ranjan Ojha intimating that Rs. 1 lac was made over to Ranjan Ojha as per telephonic talk. Now this letter (Exbt. 15) was in the bag of Ranjan Ojha and that bag was recovered against Tony Anthony on 10-03-2000 as per seizure list (Exbt. 7/1) and the bag has been identified by P.W. 1 as on that bag there was inscription "Dinesh Kumar Kabra and Sons (H.U.F.) Karta". Thus one letter addressed to Dinesh Kumar Kabra on the letter head of Suresh Kumar Saraf and another letter on the letter head of Naresh Kumar Kabra were recovered from Tony Anthony. P.W. 10 Biswadip Biswas, an employee of Loknath Saraf and Company affirmed initial signature on 12 bundles of note of Rs. 100 denomination and also 20 bundles of note 50 rupee denomination on the first note of each bundle. It cannot be argued that these signatures were obtained after recovery because recovery was associated with recovery of bag along with letters which were identified by P.W. 1. It is the evidence of P.W. 10 that he receives money from clients, counts them and put them under girder and pin up them with staple and put initial signature on the front note and mention the number of notes. It appears from Exbt. 18, the computerized version of the incoming and outgoing particulars of the mobiles that on the date of incident i.e. 07-03-2000 Tony Anthony had telephonic talk with the other accused Parameswar Lal Soni at least five times and this computerized version further discloses that Tony Anthony also had talk with P.W. 1 at 04-40 p.m. This Exbt. 18 connects Tony Anthony with Parameswar Lal Soni exactly before the incident. Therefore, Parameswar Lal Soni cannot be said to be unknown person to Tony Anthony. Both were connected with the offence and one had talk with the other before the incident.

It was argued by the learned advocate for the appellant Jahangir Hossain and Sahid Ali that P.W. 2 was called to Lalbazar and was shown the faces of Jahangir Hossain and Sahid Ali so that he could identify them in the T.I. Parade. Probability does not suggest that this could be so. P.W. 1 was examined by the I.O. on 07-03-2000 a few hours after the incident and his statement before the I.O. was not that he did not see the incident. Jahangir Hossain was arrested on 11-03-2000 and Sahid Ali was arrested on 09-03-2000. T.I. Parade was held of the two appellants on 30-032000 which cannot be said to be after a long lapse of time. Before the learned C.M.M. prayer for holding T.I. parade was made on 13-03-2000. Unquestionably, P.W. 1 had no occasion to be present at the time of recovery as against any of the appellants. So on the mere suspicion of the appellants that they were shown to P.W. 2 at police headquarter at Lalbazar is no ground to say that the holding of T.I. parade was vitiated. The order of the Magistrate (P.W. 12) does not show that the two appellants told P.W. 12 at the time of holding T.I. Parade at the jail that at the police headquarter at Lalbazar they were shown to P.W. 1. Neither during T.I. Parade any such objection was raised by the appellants nor during trial any suggestion was made to P.W. 12 to that effect. Therefore, there is no foundation to hold that P.W. 2 had access to the two appellants at police headquarter at Lalbazar. If the T.I. Parade had really been a managed show then it would have been possible for P.W. 2 to identify all the five accused persons instead of only three and because of lapse of time in court he could identify Jahangir Hossain and Sahid Ali.

Therefore, identification of the two appellants by P.W. 2 before the Magistrate and substantively before the court clearly and unmistakably linked the two appellants Sahid Ali and Jahangir Hossain with the offence complained of and this has further been fortified by recovery against them. In the circumstance, Jahangir Hossain and Sahid Ali are linked with Parameswar Lal Soni and Tony Anthony. Within a week from the date of recovery against Sahid Ali prayer was made before the learned CMM to hold T.I. Parade of the two appellants along with others. P.W. 10 proved his initial before the trial court on the face of each of the bundle of 100 rupee denomination note which was recovered against Tony Anthony, Jahangir Hossain, Sahid Ali and Ramesh Singh. Similarly on each of the 50 rupees bundle he had put his initial. It has been submitted by the learned advocate for the appellants that such signatures of P.W. 10 were obtained at Lalbazar but the argument cannot be upheld because in the presence of the witnesses the bundles were seized and each bundle was covered by packet and it was only at the trial that with the leave of the court packet was opened (Material Exbt. 6-15). It was argued that while a total sum of Rs. 5 lac was allegedly stolen recovery was shown of Rs. 4 lac with no explanation as to what happened to the remaining 1 lac. This is not for the prosecution to account for. The appellants might have spent a part of the booty before they were arrested.

Argument was that the examination of the appellants u/s 313 of the Cr.P.C. has not been done in accordance with law and thus no conviction can be based on evidence of the prosecution witnesses which were all not brought before the appellants for the purpose of having enlightenment from them. The decision Ajoy Singh v. State of Maharashtra 2007 (3) CLR 15 has been cited where it was held that a conviction based on the failure of the accused to explain what he was never asked to explain is bad in law. Learned Public Prosecutor Ashimesh Goswami submitted in reply that the argument is misconceived in view of all material evidence as they transpired against the accused persons having been put to the appellants who simply pleaded their innocence. 47 questions were put to Parameswar Lal Soni and all the questions covered the entire prosecution evidence transpiring against him including recovery of the money and telephone it cannot be said that any incriminating material was omitted. It was argued that some of the questions were very lengthy, but the lengthy question is but narration of the entire prosecution evidence and it cannot be said that the number of questions were clubbed in one question so that the appellants could not understand as to which of the questions they were required to answer. From the trends of answers giving by each of the appellants it does not appear that they did not understand the questions. Jahangir Hossain similarly was confronted with 47 questions which included his identification by P.W. 2 in the T.I. parade in the court and of recovery against him and to all the questions his common answer was ''he knew nothing about the incident''. The entire prosecution evidence was similarly put to Sahid Ali. No incriminating material has been left out and his common answer was that ''he did not know anything''. Having gone through the manner of examination of the accused persons it does not appear at all that they have been prejudiced in any way. They were individually asked further to clarify vis-�-vis the statements of the witnesses if they intended to make any clarification but they did not. In the circumstances, it cannot be said that the conviction has been based on evidence not put to the appellants u/s 313 of the Cr.P.C. Therefore, in the circumstances, I find that the learned trial court did not commit any illegality in convicting the appellants.

Appeals fail and are dismissed. The judgment and order of the learned trial court is confirmed.

The appellants were released on bail sometime after the appeal was admitted for hearing. Their bail bonds are cancelled. They are directed to surrender before the learned trial court to serve out the sentence within a month from the date of this order failing which the learned trial court will take appropriate steps to have the sentence executed in accordance with the law.

Along with the disposal of the three appeals a revisional application under CRR No. 1069 of 2003 filed by P.W. 1 Dinesh Kumar Kabra challenging the order dated 24-04-2003 passed by learned Sessions Judge, 8th Bench, Calcutta in connection with the Sessions Case No. 47 of 2000 (S.T. No. 2 of August 2000) rejecting the prayer of the petitioner for return of seized money and bag to him needs also to be disposed of. Before the learned Judge P.W. 1 Dinesh Kabra prayed for return of the sum of Rs. 4 lac but because of the pendency of the instant three appeals prayer was rejected. Now that the appeals are disposed of and none of the appellants during trial have claimed their entitlement to the money recovered against them and monies having been recovered against the appellants there is no reason for refusal to return the money in favour of P.W. 1 Dinesh Kabra. Accordingly, The seized money and the bag shall be returned to P.W. 1 Dinesh Kabra.

A copy of this judgment and order shall be sent to the learned trial court immediately for information and necessary action.

Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.