Tutul Sk. vs The State of West Bengal

Md. Mumtaz Khan, J.—1. This appeal has been preferred by the appellants assailing the judgment and order of conviction and sentence dated October 17, 2006 & October 18, 2006 respectively passed by the Ld. Additional District and Sessions Judge, Fast Track, 3rd Court Rampurhat, Birbhum in Session Trial No. 6(6)/06 (TR No. 20/06) arising out of Sessions Case No. 101/2005. By virtue of the impugned judgment appellants have been convicted and sentenced to suffer rigorous imprisonment for life with fine of Rs. 5,000/- each in default to suffer rigorous imprisonment for a further period of 6 month each for the offence punishable under Section 394 Indian Penal Code (hereinafter referred to as IPC) while the remaining two accused persons namely Rahatul Sk. and Kabir Khan have been acquitted from the charge punishable under Section 396 IPC.

The prosecution case, in brief is as follows:-

On November 12, 2004, P.W. 1, Lutfal Haque along with his 9 co-villagers and others in all 17 came from Asansol by a train and got down at Murarai railway station. As no vehicle was available for returning to their home they hired one 407 model truck bearing No. WB-574524, then just at that time 04 other unknown persons also got into that truck along with them. The said truck then proceeded towards Omarpur and at about 11.35 in the night after crossing Mitrapur, the said truck suddenly stopped at the border/juncture of Bhirbhum and Murshidabad. Thereafter 3 miscreants who were on the back side of the vehicle having pistol and chhora with them while threatening them snatched away Rs. 11,200/- from P.W. 1, Rs. 8,500/- from his second elder brother Hukumat Sk. and Rs. 2,900/- from his elder brother Rahamat Sk. and from other co-passengers. When P.W. 1''s second elder brother Hukumat Sk., resisted then one of them struck him by a sharp cutting weapon in his stomach causing severe bleeding injuries and thereafter those 3 miscreants who were on the back side the lorry and one miscreant who was in the front side of the lorry fled away towards Mitrapur. Miscreants were wearing pant shirt and amongst them two were of fair complexion while other two were of dark complexion and were aged about 25 and 35 years and were talking in Bengali. After the miscreants left they took the injured to Jangipur sub-divisional hospital where he was declared brought dead. A complaint was then lodged on November 13, 2004 at 06.05 hours by P.W. 1 before the officer-in-charge Murarai P.S., Birbhum.

On the basis of the above complaint, P.W. 12 started Murarai P.S. Case No. 93/04 dated 13.11.2004 under Section 394/302 IPC against 04 unknown miscreants and he himself took up investigation of this case and on completion of the same submitted charge-sheet being No. 40/05 dated May 12, 2005 against the appellants and 3 others namely Rahatul Sk., Kabir Khan and Rahim Sk. under Section 396 IPC. In the meantime accused Rahim Sk. absconded, as such case was filed against him on September 9, 2005 and proceeded against the rests.

Charge was framed on June 16, 2006 against Rahatul Sk., Kabir Khan and the appellants under Section 396 IPC and when they denied their involvement in the crime, trial proceeded. Prosecution examined 14 witnesses and also produced and proved the FIR, written complaint, seizure lists, inquest report, PM report, rough sketch map with index, report of T.I. Parade etc. which were marked exhbts. 1 to 7 for the prosecution. Thereafter on completion of trial and after examining the appellants and the other accused persons under Section 313 Cr.P.C. learned court below passed the impugned judgment and order.

It is submitted by the learned advocate appearing on behalf of the appellants that the impugned judgment, order of conviction and sentence cannot be sustained in law for the following reasons:-

i) There has been discrepancy as to the number of miscreants involved in the commission of the offence alleged, as according to the FIR four miscreants committed the offence whereas as per the charge-sheet five miscreants found involved in the crime.

ii) The authenticity of the FIR was questionable as according to the P.W. 1, after cremation of the dead body on 13.11.2004, he came to the Murarai P.S. around 3/4 P.M. and thereafter submitted the written complaint whereas as per the FIR it was lodged on 13.11.2004 at 06.05 hrs.

iii) There was no evidence on the record as to what part was played by the appellants during the commission of the offence alleged and even the FIR is silent on this score. There were also contradictions in between the statements of the witnesses about the number of miscreants involved in the incident of stabbing as also the place of such stabbing.

iv) There was a delay in holding the T.I. Parade. Identification of the appellants during trial and in the T.I. Parade is questionable as the incident in question reportedly took place in darkness and there was no whisper about the availability of any light.

v) Statements made by P.W. 2 during T.I.P. did not find place from his evidence made before the Court. Nowhere he had stated that he saw the miscreants to stab his brother. There was no whisper of P.W. 3 during examination before court that he identified the appellants in the T.I.P.

vi) There was no evidence on record that looted booty was recovered from anyone. Recovery of the weapon of offence is also doubtful as save and except the I.O. other seizure witnesses were not examined. There was also no whisper whether the weapon of offence was bloodstained and was sent to the FSL for examination or not. No such statement of the appellant No. 2 recorded U/s. 161 Cr.P.C. was produced to prove that weapon of offence was recovered leading to his statements.

It is also submitted by the learned advocate appearing on behalf of the appellants that incident of stabbing took place after the alleged robbery/dacoity, so it should be culpable homicide not amounting to murder. According to him non recovery of booty etc. will not attract the provisions of section 394 I.P.C. but it will attract the provisions of 304 Part-II I.P.C.

According to learned Advocate for the appellants learned Court below did not take into consideration the aforesaid aspects of the matter for passing the impugned judgment and order of conviction and sentence.

At the very outset, learned Counsel appearing on behalf of the State submitted that the instant case relates to commission of robbery/dacoity with deadly weapons from the persons traveling in a truck causing death of one of the passenger.

It is also submitted by the learned Counsel appearing on behalf of the State that guilt of the appellants was proved for passing an order of conviction U/s. 394 of Indian Penal Code as also an order of sentence under the above provision. According to him, there was no fault on the part of the learned court below to pass the impugned judgment and order of conviction as also sentence.

It is also submitted by the learned counsel appearing on behalf of the State, the case was initiated against 04 unknown miscreants but during investigation it transpired that 05 miscreants were involved and accordingly charge-sheet was submitted against 05 out one absconded and so case was filed against him and proceeded against the rests.

According to the learned counsel appearing on behalf of the State though the miscreants were unknown but there were chatting between the miscreants and the persons traveling in the truck for about one hour, so possibility of their identification could not be ruled out.

According to the learned counsel appearing on behalf of the State appellants were identified by the eye witnesses P.W. 1, P.W. 2, P.W. 3, P.W. 4, P.W. 7 and P.W. 8 in course of recording of their evidences before court and P.W. 1, P.W. 2, P.W. 7 and P.W. 8 also identified them during T.I. Parade. According to him appellants even after identification during T.I. Parade stated nothing to the Magistrate, so their claim made during their examination U/s. 313 Cr.P.C. that they were identified to the witnesses at the P.S. was afterthought and not believable.

According to the learned counsel appearing for the State, appellant No. 1 was arrested on March 3, 2005 and appellant No. 2 was shown arrested on March 7, 2005 and the T.I. Parade was held on March 31, 2005 which could not be considered as delay in view of the facts and circumstances available on record. Moreover, the alleged delay in conducting the T.I. Parade cannot be sustained in law considering the nature of offence committed by the accused.

It is further submitted by the learned counsel appearing for the state though the weapon of offence (Ext. 1) was recovered leading to the statements of appellant No. 2 but the case of the prosecution was not based on the recovery of the weapon of offence only. According to him commission of offence by the appellants amongst others was proved on the basis of the evidences of as many as six eyewitnesses, viz. P.W. 1, P.W. 2, P.W. 3, P.W. 4, P.W. 7 and P.W. 8 as also evidences of driver (P.W. 5) and Khalasi (P.W. 6) of the truck in question who were also present there, the injuries sustained and the P.M. report and mere non recovery of booty was not fatal for the prosecution case.

Finally it was submitted by the learned counsel appearing for the State that the alleged discrepancy with regard to the number of miscreants involved in the incident of stabbing, the place of stabbing inside or outside the truck and other discrepancies as alleged on behalf of the appellants were minor in nature and the charge of commission of offence of robbery was proved against the appellants beyond doubt having no adverse effect of such minor discrepancies on the appellants.

The learned counsel appearing for the State relied upon the following decisions:-

Chottan Mahton and Ors. Vs. State of Bihar reported in (1969) 3 SCC 727, Shamnsaheb M. Multtani Vs. State of Karnataka reported in , AIR 2001 (SC) 921, Tarkeswar Sahu Vs. State of Bihar (Now Jharkhand) reported in , (2006) 8 SCC 560.

We have considered the submissions advanced by learned advocates for both sides. We have also given our thoughtful consideration to the evidence of the prosecution witnesses, the materials on record including the F.I.R., inquest report under section 174 Cr.P.C., rough sketch map with regard to the place of occurrence, post mortem report, seizure lists, charge sheet, charge framed amongst other materials for examining propriety of the impugned judgment and order of conviction and sentence.

The learned Court below took into consideration the evidences of P.W. 1, P.W. 2, P.W. 3, P.W. 4, P.W. 7, P.W. 8 as also evidences of P.W. 5 and P.W. 6, the driver and Khalasi respectively of the truck in question, P.W. 11, the doctor, who conducted post-mortem examination over the dead body of the victim and the P.M. report (Ext. 3), where the doctor had opined that death was due to acute shock and haemorrhage due to stab injury, to arrive at a conclusion that on the relevant night when P.W. Nos. 1, 2, 3, 4, 7, 8 along with the victim Hukumat Sk. and others numbering 17 persons were returning to their house in a truck bearing No. W.B. 574524 after getting down from train at Murarai Station, then four unknown miscreant including these appellants who had also boarded that truck by showing arms stopped the same and forcibly snatched away cash etc. from them and also stabbed Hukumat Sk. on his belly by a sharp cutting weapon causing severe bleeding injury resulting in his death.

On perusal of the evidence of P.Ws. on record together with the evidence of the doctor (P.W. 11), the inquest report (Ext. 8) and the P.M. report (Ext. 3) it appears that the death of the victim Hukumat Sk. was due to acute shock and haemorrhage due to stab injury sustained in his stomach. The circumstances leading to the death of the victim has been described in the letter of complaint (Ext. 1). As per the complaint (Ext. 1) on the relevant night when P.W. Nos. 1, 2, 3, 4, 7, 8 along with the victim Hukumat Sk. and others numbering 17 persons were returning to their house in a truck bearing No. W.B. 574524 after getting down from train at Murarai Station, then four unknown miscreant who had also boarded that truck by showing arms stopped the same and forcibly snatched away cash etc. from them and when Hukumat Sk. resisted, one of them stabbed him on his belly by a sharp cutting weapon causing severe bleeding injury resulting in his death. Descriptions of the miscreants were given in the FIR with specific averment of the complainant that he can identify them, if they are found again. On perusal of the evidence of P.W. 1, complainant, we find that he has corroborated the F.I.R. on oath and vividly narrated the entire incident and in course of recording of his evidence before court he identified these appellants to be the miscreants amongst those 04 miscreants who committed the offence. He had also identified the appellants during T.I.P. held after the appellants were apprehended, as is evident from the report of T.I.P. (Ext. 7). P.W. 2, P.W. 3, P.W. 4, P.W. 7 and P.W. 8, the victims and eye witnesses, have also supported the above version of the complainant (P.W. 1) and in course of their recording evidence before court they also identified these appellants to be the miscreants amongst those 04 miscreants who committed the offence. The elaborate cross-examination of the above eye witnesses on behalf of the appellants/accused persons has failed to discredit their testimony in any manner whatsoever. During the T.I.P., P.W. 2 and P.W. 7 had also identified both the appellants while P.W. 8 identified appellant No. 1 only. P.W. 5, the driver, and P.W. 6, Khalasi of the truck in question, though not named the appellants, also supported the prosecution case as stated in the F.I.R. We find no substance in the submission made on behalf of the appellants that P.W. 3 did not whisper during his examination before court that he identified the appellants in the T.I.P., as P.W. 3 did not attend the T.I.P., as is evident from Ext. 7. However, in course of examination of the above witnesses certain discrepancies cropped up as to the timing of lodging of the F.I.R., number of miscreants involved in stabbing the victim, time and place of stabbing of the victim etc. Questions were also raised about the authenticity of identification of the appellants in the T.I.P., role played by each of them, reliability of evidence as to the recovery of weapon of offence etc. Now let us deal with the above issues one by one.

With regard to the discrepancies, as pointed by the learned advocate for the appellants, it is the settled proposition that the discrepancies found in the evidences of eyewitnesses cannot affect their credibility unless such discrepancies are so vital. Reference may be made to the decision of Leela Ram vs. State of Haryana, reported in , (1999) 9 SCC 525 and the relevant portions of the above decision are quoted below:-

"9. Be it noted that the High Court is within its jurisdiction being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimensions, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in State of U.P. v. M.K. Anthony. In para 10 of the Report, this Court observed: (SCC pp. 514-15)

"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weightily and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."

(emphasis supplied)

It is also well settled that there bound to be some discrepancies between the depositions of different witnesses when they speak in details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. But discrepancy has to be distinguished from contradiction. While minor discrepancy or variance in evidence will not make the prosecution''s case doubtful, contradiction in the statement of witness is fatal for the case. Reliance is placed on the decision of State of H.P. vs. Lekh Raj, reported in , (2000) 1 SCC 247 and the relevant portion of the above decision is quoted below:-

"7. In support of the impugned judgment the learned counsel appearing for the respondents vainly attempted to point out some discrepancies in the statement of the prosecutrix and other witnesses for discrediting the prosecution version. Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution''s case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot-like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagadish v. State of M.P. this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v. Kalki held that in the depositions of witnesses there are always normal discrepancies, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal and not expected of a normal person."

(Emphasis supplied)

In the matter of Shyamal Ghosh vs. State of West Bengal, reported in , (2012) 7 SCC 646, it has been held by the Hon''ble Apex Court that court should examine the statement of a witness in its entirety and read the said statements along with the statements of other witnesses in order to arrive at a rational conclusion instead of reading statement of a witness in part or in isolation. The relevant portion of the above decision is quoted below:-

"49. It is a settled principle of law that the court should examine the statement of a witness in its entirety and read the said statement along with the statement of other witnesses in order to arrive at a rational conclusion. No statement of a witness can be read in part and/or in isolation. We are unable to see any material or serious contradiction in the statement of these witnesses which may give any advantage to the accused."

In the case in hand, the discrepancies as to the number of the miscreants disclosed in the letter of complaint and stated by the eye witnesses with the numbers found during investigation was minor in nature. P.W. 1, P.W. 2, P.W. 3, P.W. 4, P.W. 7 and P.W. 8, the eye witnesses, have categorically disclosed the presence of four unknown miscreants in the truck who committed the offence and identified the appellants in course of their deposition before court to be the miscreants amongst those miscreants. They were cross-examined by the defence at length but their evidence remained unshaken. This has also been corroborated by P.W. 5 (driver) and P.W. 6 (Khalasi), of the truck in question.

Similarly the discrepancies as to the number of miscreants involved in stabbing the victim as deposed by P.W. 4 with the statements of other eye witnesses before court is not so vital, as the incident was committed on the highway and P.W. 4 might have overlooked the same. This minor discrepancy in evidence is not going to the root of the case making the prosecution''s case doubtful. Therefore, our interference with the impugned judgment is not required on the above grounds considering the same were not contradictions of a material dimension.

Regarding the contradiction in between the oral and documentary evidence, it has already been held by us in the judgment dated September 1, 2015 in the matter of Allauddin Khan vs. The State of West Bengal (in re: CRA 299 of 2014) that a man may lie but a document will never lie. The above principle of law was followed on the basis of a decision of this Court in the matter of Afzauddin Ansary & Ors. vs. The State of West Bengal, reported in , 1997 (2) Crimes 53 Cal., and the relevant portion of the above decision is quoted below:-

"20. A well-known dicta has been laid down not only by the apex Court of our country but also by the Privy Council that a man may lie but a document will never lie. It is a well-known adage that one swallow does not make a summer but it is a case where one swallow makes a summer. The question arises in this way as it gyrates the whole issue where the evidence as to recognition is a subsequent creation by the machination of the Ansaries. Exhibit-5 the copy of the general diary book projects an unnatural shadow about recognition of any one of the appellants before us. A silence has been maintained in the said exhibit where none of the names of the appellants found their room in the general diary book. ........"

(Emphasis supplied)

With regard to the contradictions in between the statements of P.W. 1 and the F.I.R., as submitted by the learned Advocate for the appellants, as to the timing of lodging of complaint, it appeared from the evidence on record that the alleged incident took place in the night of 12.11.2004 and a written complaint was submitted at Murarai P.S. on 13.11.2004. P.W. 1 has also deposed that over the incident he lodged the complaint (Ext. 1) at the Murarai P.S. During cross-examination he had deposed that after cremation of the dead body of his brother they came to Murarai P.S. around 3/4 P.M. and thereafter gave the written complaint to officer-in-charge Murarai P.S. But the officer-in-charge of the Murarai P.S. (P.W. 12) has clearly stated that he received the written complaint on 13.11.2004 at 06.05 hrs. which he also affirmed during his cross-examination. From the endorsement (Ext. 1/3) made on the margin of the complaint (Ext. 1) and also the formal F.I.R. (Ext. 4) it is evident that the complaint in question was received at the P.S. on 13.11.2004 at 06.05 hrs. So, there was no reason to disbelieve the version of P.W. 12 and the endorsement of date and time of receipt made in the complaint and the F.I.R. Such discrepancies are generally due to normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Therefore, our interference with the impugned judgment is not required on the above ground.

With regard to the delay in conducting test identification parade of the accused persons, it is well settled that no time limit could be fixed for holding a test identification parade. Generally, with lapse of time memory of witnesses would get dimmer. So, earlier test identification parade inspires more faith. However, there are circumstances for creating impressing upon the mind of a victim which would not diminish or disappear for a considerable period of time. Therefore, consideration of the facts and circumstances are relevant for ascertaining as to whether lapse of the period in conducting test identification parade in that particular case may erase the facial expression of the accused from the mind of victim. In the case of Anil Kumar vs. State of U.P., reported in , (2003) 3 SCC 569, lapse of 47 days to conduct test identification parade was not considered sufficient to erase the facial expressions from the minds of witnesses. The relevant portion of the above judgment is quoted below:-

"14. In the present case also Manoj was attacked by Chaman as well as the appellant. He had a clear look at his assailants. Thereafter his younger brother came to save him and in that process got killed. Manoj also received serious injuries. These are circumstances which would impress upon the mind of Manoj the facial expressions of the assailants. This impression would not diminish or disappear within a period of 47 days. Similar is the case of the father and one of the father and the mother of Manoj. They have seen the assailants attacking their sons and one of the sons getting killed. In their memory also the facial expressions of the assailants would get embossed. A mere lapse of 47 days is not going to erase the facial expressions from their memory."

(Emphasis supplied)

It is evident from the record that the miscreants were unknown to the victims but their descriptions were given in the FIR with specific averment of the complainant that he can identify them, if they are found again. Accordingly after apprehension when the appellants were placed in the T.I.P. they were identified by the complainant, P.W. 1, and the other eye witnesses. It is apparent from Ext. 7, the report of T.I.P., that five witnesses namely P.W. 1, P.W. 2, P.W. 7, P.W. 8 and one Enamul Sk., not examined, attended the T.I.P. of whom P.W. 1, P.W. 2, P.W. 7 and the said Enamul Sk. identified both the appellants while P.W. 8 identified appellant No. 1 only. It also appears from Ext. 7, that after identification of the appellants in the T.I.P. they did not say anything about their identification by the witnesses in spite of opportunity given to them. Appellant No. 1 was apprehended on March 3, 2005 while appellant No. 2 was shown arrested on March 7, 2005 and the T.I.P. was held on March 31, 2005. So, the identification of the appellants by the victims, held within a month from their arrest, did not throw any doubt on the genuineness of identification parade taking into consideration the circumstances of snatching their cash and other valuable articles while travelling with them in the truck in the guise of passengers and even stabbing one of those victims resulting in his death. P.W. 1 has specifically stated during cross-examination that they were gossiping with those four unknown miscreants through out the journey but just at the moment of incident miscreants switched off the light of the truck. He has also specifically stated during cross-examination that they recognised those miscreants during their gossiping on the truck. P.W. 3 has also clearly stated during cross-examination that he saw the miscreants first on the night of the incident. P.W. 7 also while deposing before court clearly stated during cross-examination that he saw the appellants at the time of snatching. So, the plea with regard to genuinity of identification does not hold good. Therefore, the propriety of the impugned judgment cannot be questioned on the above ground.

With regard to the issue relating to the recovery of the weapon of offence leading to the statements of the appellant No. 2, we find from the record that no such statements U/s. 27 of the Evidence Act leading to the recovery of the weapon of offence was produced and proved before the court. Alleged recovery was made on 15.03.2005, four months from the incident, from the house of one Mojam Mallick but none of the witness to the alleged seizure was examined to support the above claim. There was also no evidence that the said house was under the exclusive control of the appellant No. 2. The weapon of offence was in question was also not shown to the eye witnesses or to the doctor to connect the same with the crime. As such evidence of recovery of the weapon of offence in the absence of the record of statement of the accused can not be relied upon. Be that as it may, failure to recover weapon of assault is not fatal for the prosecution case when the prosecution case is otherwise proved based on the testimony of the independent eye witnesses. It was already found that the evidence of the eye witnesses clearly brings out the details of the incident and the sequence of events that had taken place and they had clearly identified the appellants as being the persons who participated in the crime. The nature of injury sustained by the victim, as claimed by the eye witnesses, also found corroboration from the inquest as also post-mortem report. Such injury sustained by the victim was also not disputed or denied by the defence Therefore, our interference with the impugned judgment is not required on the above ground.

With regard to the specific role played by these appellants during the commission of the offence alleged, we find that the FIR was not very specific on this score and there was also no clear evidence on record to that effect. But we find that all the eye witnesses have been clear and consistent while describing the sequence of events that had taken place on the date of occurrence and nothing has been elucidated in their cross-examination to discredit their statements. They also identified the appellants as being the persons who participated in the commission of the offence. It is true that F.I.R. as also the evidence on record is not very clear about the specific part played by each of the miscreants in committing the offence. However, in order to adjudicate this issue the provisions of Section 394 of the Indian Penal Code are quoted below:-

"394. Voluntarily causing hurt in committing robbery.-If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine." Similarly, Section 396 of the Indian Penal Code states that-- "If anyone of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

So, not only the person who causes hurt/death but his associate would equally be liable for the mischief. Therefore, our interference with the impugned judgment is not required on the above ground.

With regard to the submissions that incident of stabbing took place after the alleged incident of robbery/dacoity, so the provisions of 304 Part-II I.P.C. will be attracted and not the provisions of section 394 I.P.C., we do not find any substance in the same, as from the evidence of the eye witnesses it is crystal clear that the incident of stabbing took place at the very spot when there was an attempt by the victim to resist the miscreants. This case initially proceeded for the commission of the offence U/s. 394/302 I.P.C. but after completion of investigation charge-sheet was submitted U/s. 396 I.P.C. Thereafter charge was framed U/s. 396 I.P.C. but on completion of trial learned court below found that the facts and circumstances of the case shows the commission of the offence U/s. 394 I.P.C. and accordingly convicted the appellants for the offence U/s. 394 I.P.C. though no formal charge was framed under that section.

Section 222(2) of the Code of Criminal Procedure provides that when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. Section 396 of the Indian Penal Code relates to commission of dacoity with murder by five or more persons and the maximum punishment provided for the said offence is death while Section 394 of the Indian Penal Code relates to voluntarily causing hurt in committing robbery and the maximum punishment provided for the said offence is imprisonment for life. Involvement of four miscreants in the commission of the crime has been made out in the written complaint to the P.S., which has also been corroborated by the eye witnesses during trial. Therefore, taking into account the same learned court below arrived at the conclusion that the facts and circumstances of the case shows the commission of the offence U/s. 394 I.P.C. and accordingly passed the order of conviction for the said offence. Therefore, there was no impropriety on the part of the learned Court below to pass the order of conviction and sentence under that section.

Taking into consideration the facts and circumstances on the basis of which the impugned judgment is passed, we are of the opinion that the impugned judgment need not require our interference on the above grounds in view of the settled proposition of law as discussed hereinabove.

In view of the above, we have no difficulty in reaching the conclusion that the conviction of the appellants Tutul Sk. @ Nur Alam and Jahir Sk. @ Jahiruddin under section 394 IPC and the sentence imposed thereunder is fully justified. We, therefore, dismiss the appeal and affirm the conviction and sentence imposed on the appellants.

Copy of this judgment along with the lower court records be sent down to the trial court forthwith for information and taking necessary action.

Urgent photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.

Debasish Kar Gupta, J.—38. I agree.