Joymalya Bagchi, J.@mdashThe appeal is directed against the judgment and order dated 25/26.02.2010 passed by the learned Additional District
and Sessions Judge, Fast Track III, Howrah convicting the appellant and one Md. Samim for commission of offence punishable under section 324/
34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for three years with a fine of Rs. 10,000/-, in default to suffer
simple imprisonment for four months more. The prosecution case, as alleged, against the appellant and Md. Samim is as follows:-
One Madhu Dasgupta (P.W. 1) lodged a written complaint before O.C., Shalimar Police Station. That on 09.11.2006 he was travelling in the third
compartment of MH 140 Midnapur-Howrah local train. He had boarded that train at 10.05 p.m. from Mechada railway station. Another
passenger, namely, Nanda Kishor Singh (P.W. 3) had also boarded from Mechada. The train left Santragachi Station at about 11.15/11.20 p.m.
Three miscreants came to the compartment before the train reached Ramrajatala. One of the miscreants who was carrying pistol threatened them
and another miscreant carrying knife came towards him and assaulted him resulting in injury on his head and left thumb. Rupees 5,000/- and a
mobile phone was taken away. Another co-passenger, namely, Pankaj Bhattacharya (P.W. 4) objected to the violent acts of the miscreants to
which the miscreants opened fire from the pistol but fortunately the bullet passed through the window of the train and as Pankaj Bhattacharya
pushed away the pistol he was also assaulted. The miscreants jumped from the train to escape but the appellant sustained injury on his leg and
head and was caught by Pankaj Bhattacharya and other co-passengers Nanda Kishor Singh, Bishnath Chatterjee and Tarak Chatterjee sustained
bleeding injuries on their person. On questioning the appellant admitted that he was accompanied by Md. Samim of Shibpur. On the basis of
written complaint Shalimar GRPS Case No. 24/06 dated 10.11.2006 under section 394/ 307 of the Indian Penal Code with section 25/ 27 of
Arms Act was registered for investigation. In conclusion of investigation charge-sheet was filed against the appellant and Md. Samim under section
394/ 307 of the Indian Penal Code read with section 25/ 27 Arms Act.
2. The case, being a sessions triable one, was committed to the Court of Sessions, Howrah, and transferred to the Court of the Additional
Sessions Judge, Fast Track III, Howrah for trial and disposal.
3. Charges were framed in the instant case under section 394/ 307/ 34 of the Indian Penal Code. The appellant and co-accused pleaded ''not
guilty'' and claimed to be trial. In the course of trial, the prosecution examined 13 witnesses and exhibited a number of documents. The defence of
the appellant was one of innocence and false implication. In conclusion of trial, learned Judge by judgment and order dated 25/26.02.2010
convicting the appellant and Md. Samim for commission of offence punishable under section 324/ 34 of the Indian Penal Code and sentencing
them to suffer rigorous imprisonment for three years with a fine of Rs. 10,000/-, in default to suffer simple imprisonment for four months more.
Hence, the appeal at the behest of the appellant.
4. Mr. Das, learned counsel appearing for the appellant submitted that the appellant was identified for the first time in Court and there was no test
identification parade conducted during investigation. Knife seized in the case cannot be said to be weapon of assailant. It was not identified by the
witnesses and there was no labelling of the seized knife at the time of seizure. He further submitted that the evidence of the prosecution witnesses is
most artificial and does not inspire evidence. He accordingly prayed for acquittal of the appellant.
5. Mr. Banerjee, learned Additional Public Prosecutor appearing for the State submitted that appellant was caught red handed at the spot by P.W.
4 and others and was handed over to the police after his identity was disclosed. Hence, question of holding test identification parade became into
insignificant. He submitted that the evidence of the prosecution witnesses, particularly, P.Ws. 3 and 4 established the prosecution case beyond
reasonable doubt. He accordingly prayed for dismissal of the appeal.
6. P.W. 1 is the de facto complainant of the instant case. P.Ws. 2, 3 and 4 were the co-passengers when the incident occurred. P.W. 4 is also
injured witness. P.Ws. 5, 6, 7, 8, 9, 10 and 12 are police personnel who had been to the place of occurrence on the date of incident. P.W. 11 is
the doctor who examined the injured person, including the appellant after the incident. P.W. 13 is the Investigating Officer of the case who
deposed regarding the seizure of articles, preparation of sketch map. He deposed relating to the seizure of knife which was seized in the presence
of the P.Ws. 1, 4 and 5. P.W. He also submitted the charge-sheet in the instant case.
7. P.W. 1 has proved first information report. However in his deposition he stated that he was assaulted and he sustained injury while he was
sleeping and was unable to identify the appellant.
8. P.W. 2 also failed to identify the appellant and other accused person. P.Ws. 3 and 4 are most vital witnesses in the case.
9. P.W. 3 stated that he boarded the train at Mechada. The train was initially crowded. When the train left Santragachi railway station there was
only five passengers in the compartment, two of them were sitting in the compartment and two were sleeping and another passenger was sitting far
away in the same compartment. When the train was leaving Santragachi two/three persons boarded the train. The person who was sitting was also
assaulted with knife by one of the person who boarded the train and cash money and mobile phone from that passenger was taken away. One of
the miscreants had pistol who came towards P.W. 3 and fired upon the person who was sitting beside him. He ducked below the seat to save
himself. Bullet passed over him. The other miscreant was carrying a knife came towards them and when he tried to attack with knife another co-
passenger caught the miscreants which resulted in a fight between them. As the next station was approaching the train became slow. At that time
the miscreants tried to jump down from the train. The other passenger who was involved in a scuffle chased the miscreants. The said passenger
caught the miscreants on the railway track and shouted. GRPS constables and public assembled there. Witness identified the appellant as the
person who was carrying the knife. He proved his signature on the seizure list relating to seizure of the knife. He identified the knife in Court. In
cross-examination he stated there was no sign or signature affixed to the seized knife.
10. P.W. 4 stated that he had boarded the Midnapur local train. The train left Santragachi Station around 11.15/11.20 p.m. At that time the
appellant who was carrying a revolver pointed the gun at P.W. 1 while co-accused Md. Samim assaulted P.W. 1 with a knife. P.W. 1 sustained
injury on his head and handed over money and mobile to the accused persons. The accused persons came towards the witness and pointed
revolver at his head. He defended himself by pushing the revolver and narrowly saved himself. He was able to snatch away the revolver and threw
the same at the head of another accused who managed to escape. Accused Md. Samim gave the knife to the appellant then the appellant assaulted
him with a knife. The witness caught the appellant and sustained bleeding injury of his hand. When the train reached Ramrajatala station the
accused persons jumped out of the compartment. Witness chased and caught the appellant. The appellant was taken to the police who arrested
him. The knife was seized in his presence and he signed the seizure list. He was treated by the doctor. He proved his signature on the seizure list as
well as in the injury report.
11. P.W. 5 is a constable and was posted at Shalimar GRPS. He stated that on getting news of dacoit he came with Barababu S.I. D.N. Samanta,
to Ramrajatala station. He found some passengers had suffered injuries from dacoits and the passengers and dacoits were brought to the police
station. The appellant and the co-accused persons were identified by the witness.
12. P.W. 6 is another constable who was also posted at Shalimar GRPS. He stated that he was present in the Midnapur local train after
performing his duty in Jagannath Express from Howrah to Mecheda. While he was checking lady''s compartment he heard hue and cry from next
compartment. When the train stopped he ran towards the compartment and found one person coming out who had vojali in his hand. He identified
the person as the appellant. He stated that the appellant jumped over the railway line. He also caught the appellant and informed the matter over
phone to Shalimar GRPS. Daroga Babu of Shalimar GRPS came. He identified the knife seized at the place of occurrence. In cross-examination
he admits he did not affix personal identification on the knife.
13. P.W. 7 was posted at Shalimar GRPS. He accompanied Bara Babu of Shalimar GRPS to the place of occurrence. He stated that one of the
accused was caught at the place of occurrence. He identified the appellant as the accused.
14. P.W. 8 is another constable who corroborated the evidence of P.W. 7.
15. P.W. 9 was Officer-in-Charge of Shalimar Police Station. He received written complaint and conducted the investigation. In the course of
investigation he collected injury report. He obtained warrant of arrest against the absconding co-accused and Shalimar Police Station subsequently
arrested the said co-accused person.
16. P.W. 10 is the home guard attached to Shalimar GRPS. He has corroborated the evidence of P.W. 6.
17. P.W. 11 is the doctor who treated the injured persons including P.Ws. 1, 4 and the appellant.
18. P.W. 12 has corroborated the evidence of P.W. 6 and P.W. 10 and identified the appellant.
19. P.W. 13 has conducted the remainder of the investigation and has filed the charge-sheet in the instant case.
20. Evidence of P.W. 4 injured eye-witness which is most vital. He has proved prosecution case and the involvement of the appellant. He caught
the appellant at the place of occurrence red handed. He identified the appellant in Court. His evidence is corroborated by the other witnesses,
namely, P.Ws. 3, 5, 6, 7 and 10. The witnesses have proved beyond doubt that the appellant was one of the miscreants who were in the train
compartment and had participated in the assault of P.Ws. 1 and 4 and thereafter was caught by P.W. 4 while he was trying to flee away.
21. In view of such consistent evidence on record particularly the fact that the appellant was caught red handed and thereafter his identity was
immediately disclosed, I am of the view that test identification parade was not necessary in the instant case. I am also unable to accept the
contention that the seized knife was not the weapon of assault. Seizure has been proved by the prosecution witness. Their signatures have also
been proved on the seizure list. Witnesses have also identified the material exhibited in Court. The claim that the knife was not labelled or sealed is
incorrect inasmuch as P.W. 13 states the knife bears a label in his hand writing.
22. For the aforesaid reasons, I am of the opinion that the prosecution has been unable to prove his case beyond reasonable doubt.
23. I do not find any merit in the instant appeal and the same is accordingly dismissed.
24. The appellant is directed to surrender before the trial Court within a month to serve out the sentence in accordance with law. Copy of the
judgment along with the lower court records be sent down to the trial Court at once.