1 IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Ananya Bandyopadhyay C.R.A. 26 of 2001 Pradip Biswas & Ors. -Vs- The State of West Bengal And C.R.A. 64 of 2001 Sukumar Naskar & Ors. -vs- The State of West Bengal For the Appellants : Mr. Milon Mukherjee, Sr. Adv., For the State : Ms. Anasuya Sinha Ms. Jonaki Saha Judgment on : 20.07.2026 Ananya Bandyopadhyay, J.:- 1. These appeals are preferred against the judgment and order dated 21.12.2000 passed by Learned Additional Session Judge, 10th Court, Alipore, South 24 Parganas in Sessions Trial No. 4(6)2000, convicting the appellants under Section 395 of the Indian Penal Code read with Section 397 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for 7 years each and to pay a fine of Rs.2,000/- each, in default, to suffer rigorous imprisonment for 6 months more. 2 2. The prosecution narrative, as unfolded in the complaint portrays a meticulously orchestrated attempt to commit dacoity within the premises of the Calcutta Jute Manufacturing Company Limited situated at 93, Narkeldanga Main Road during the course of wage disbursement. According to the prosecution, on 7th January, 2000 at approximately 4:25 p.m., when the employees entrusted with the distribution of wages were engaged in the process of disbursing cash to the workmen of the mill, a group comprising nearly ten to twelve armed assailants abruptly entered the cash office. The intruders were equipped with revolvers, bhojalis and explosive devices, thereby displaying a concerted preparedness to accomplish their objective through intimidation and violence. 3. Immediately upon entering the office, the assailants severed the telephone connection so as to impede communication with the outside world and demanded delivery of the cash lying in the custody of the disbursing staff. Their demand having failed to yield the desired result owing to the non- availability of the cash and the key of the cash box, they resorted to physical aggression. Susanta Ganguly (PW-2), the complainant, who was then serving as Supervisor of the Batching Department and had been entrusted with the responsibility of supervising the wage disbursement, was struck on the head with the butt of a revolver, resulting in bleeding injuries. Simultaneously, the remaining employees present in the office were threatened with dire consequences at gunpoint and by the display of deadly weapons, thereby creating an atmosphere of palpable terror. 3 4. The commotion generated by the assault attracted the attention of numerous workers assembled within the mill premises. Responding to the cries emanating from the cash office, they rushed towards the scene and pursued the fleeing assailants up to the main gate. Finding their escape obstructed, the miscreants hastily retreated towards a green-coloured Maruti Van kept ready for their departure. While retreating, they hurled bombs outside the main gate, several of which exploded, evidently with the intention of deterring pursuit and facilitating their escape. 5. The prosecution further asserts that one of the participants, subsequently identified as accused Sukumar Naskar, failed to board the waiting Maruti Van. During his attempt to flee, a bomb contained in a bag beneath his arm exploded, causing injuries to him and preventing his escape. He was consequently apprehended at the spot by the pursuing persons. 6. The prosecution version additionally records that the office-bearers of the establishment, having received information regarding the forcible intrusion into the mill premises and the advance of the armed group towards the cash office, immediately alerted the office staff. The cash earmarked for distribution was, therefore, removed to a place of safety immediately before the assailants entered the office. Frustrated by their inability to obtain possession of the money, the intruders indulged in acts of vandalism within the office premises. 7. Based on the aforesaid information, Phoolbagan P.S. Case No.08/2000 dated 07.01.2000 under Sections 398/399/402 of the Indian Penal Code read with Sections 25(1B)(a)/27 of the Arms Act was initiated against the appellants. 4 8. After completion of investigation, the Investigating Agency submitted charge- sheet on 05.04.2000 under Sections 395/397 of the Indian Penal Code against the appellants and others. 9. Charges were framed against the appellants and other accused persons under Sections 395/397 of the Indian Penal Code to which they pleaded not guilty and claimed to be tried. 10. In order to prove its case, the prosecution examined as many as 35 witnesses and exhibited certain documents. 11. Subsequently, the police party headed by the Officer-in-Charge of the concerned Police Station reached the place of occurrence. The statement of the injured Susanta Ganguly was recorded at the spot, which was thereafter treated as the First Information Report. Besides furnishing a detailed account of the manner in which the armed assailants attempted to commit dacoity and assaulted the employees engaged in the wage disbursement, the informant disclosed that he had sufficient opportunity to observe the offenders. He described them as young men approximately between twenty- two and thirty years of age, conversant in both Bengali and Hindi, and asserted his ability to identify them. The investigation thus commenced upon a narrative depicting a calculated and violent attempt to despoil the establishment of the wage disbursement fund through the combined deployment of firearms, sharp-cutting weapons, explosive devices and physical force. 12. The Learned Advocate appearing for the appellants in CRA 64 of 2001 assailed the judgment of conviction upon a broad challenge directed against 5 both the factual appreciation and the legal conclusions recorded by the Learned Trial Court. It was submitted that the conviction rested upon speculative inference and conjectural reasoning rather than dependable legal evidence, thereby rendering the impugned judgment and order of conviction legally unsustainable. 13. The principal criticism centred upon the manner in which the oral and documentary evidence had been appreciated. According to the appellants, the Learned Trial Court failed to evaluate the testimony of the prosecution witnesses in its proper perspective and overlooked material contradictions, omissions and infirmities emerging from the record. The findings, it was argued, travelled beyond the evidence adduced during trial and consequently occasioned a serious miscarriage of justice. 14. A substantial challenge was directed against the Test Identification Parade. The Learned Counsel contended that the parade had neither been conducted in conformity with the governing legal principles nor within a reasonable period after the occurrence. The delay attending its conduct, coupled with procedural irregularities, was said to have substantially impaired its evidentiary value. It was further argued that the conviction had been founded substantially upon the Test Identification Parade without any independent corroborative evidence connecting the appellants with the alleged offences, a course impermissible in criminal jurisprudence. 15. Attention was also invited to significant contradictions and omissions permeating the prosecution evidence. The investigating agency, according to the appellants, omitted to seize material contemporaneous records, including 6 the attendance register and the cash book of the mill, though both constituted primary documentary evidence capable of establishing the presence of witnesses, the quantum of cash available for disbursement and the surrounding circumstances of the occurrence. Such omissions, it was submitted, materially weakened the prosecution version. 16. The appellants further contended that their examination under Section 313 of the Code of Criminal Procedure failed to satisfy the statutory mandate, as every incriminating circumstance appearing in evidence had not been specifically placed before them for explanation. Such procedural deficiency, according to the appellants, occasioned serious prejudice and vitiated the conviction. 17. A plea was additionally advanced that the Learned Trial Court omitted to consider the applicability of Section 360 of the Code of Criminal Procedure and the provisions of the Probation of Offenders Act. Since the appellants were first-time convicts, the question of extending the statutory benefit ought to have received judicial consideration before the sentence was imposed. 18. Developing the factual challenge, the Learned Counsel referred extensively to the testimony of individual prosecution witnesses. It was pointed out that PW-1, though claiming to have prepared the rough sketch map of the place of occurrence, admitted that no jute mill worker remained present at the time of its preparation, although the map bore the signature of PW-15. He also stated that an injured miscreant with bomb-blast injuries had been 7 brought to the mill dispensary by workers, yet denied during cross- examination that he had made such a statement before the police. 19. Reliance was placed upon the testimony of PW-2, who named PW-10, PW-9, PW-7, PW-20 and PW-5 as persons present in the cash office during the occurrence, while simultaneously asserting that PW-5 had been distributing wages in the spinning and winding section of the mill. During cross- examination, PW-2 expressed inability to recollect whether he had informed the investigating officer regarding the presence of PW-9, PW-7, PW-20 or PW- 5 inside the cash office. The Learned Counsel further highlighted that PW-2 initially asserted that nearly Rs.10 lakhs had been removed to a place of safety after information regarding the arrival of the assailants, but later admitted that he could not state the amount lying inside the cash box and that only the paymaster possessed such knowledge. 20. Reference was made to PW-3, who acknowledged his inability to state whether the owner or senior officers of the mill were present during the occurrence. Though he claimed possession of documents demonstrating his presence in the mill, no such documents were produced before the Court. 21. The testimony of PW-4 was also criticised. According to the Learned Counsel, PW-4 admitted that he had furnished no physical description of the assailants to the police and denied before the Court that he had informed the Magistrate that the offenders were armed with revolvers and bhojalis. 22. Further emphasis was laid upon the evidence of PW-5, who stated that only about Rs.55,000/- remained after wage disbursement, a figure wholly inconsistent with the allegation regarding Rs.10 lakhs appearing in the 8 complaint. PW-5 also accepted that he possessed no documentary material demonstrating his presence during the wage distribution at the relevant date and time. 23. With reference to PW-8, it was submitted that although he described one assailant falling while attempting to board the van and an explosion taking place from the bag carried by that individual, he admitted his inability to identify the injured person subsequently brought to the mill. PW-8 also deposed that the General Manager summoned him during the evening and instructed him to narrate before the police whatever he had witnessed, though he had held no discussion with any other individual concerning the occurrence. 24. The Learned Counsel next referred to PW-9, who described being dragged at gunpoint from the cash office towards the verandah and compelled to stand facing the wall. The Learned Counsel argued that none of the witnesses allegedly present inside the office, including PW-2, PW-5, PW-7, PW-10 or PW-20, made any corresponding statement before the police regarding such an incident. 25. The deposition of PW-10 was similarly criticised since, despite narrating several aspects of the incident, he omitted to mention the alleged assault upon PW-2 with the butt of a revolver. 26. Particular reliance was placed upon the evidence of PW-11, who identified accused Lakshman Mondal as the injured individual brought to the dispensary, whereas the prosecution case and the evidence of several other witnesses consistently identified Sukumar Naskar as that person. The 9 Learned Counsel characterised this divergence as strikingly inconsistent with the prosecution narrative. 27. Reference was also made to PW-13, who admitted possessing no documentary material relating to his alleged business in garments. 28. Regarding the seizure of material exhibits, the Learned Counsel pointed out that PW-21 described seizure of a torn red bag with black spots from the injured person, yet accepted during cross-examination that the seized article bore no identifying mark enabling its identification and further admitted ignorance regarding the contents of the documents upon which he had affixed his thumb impression. 29. The testimony of PW-23 was also assailed. Though she claimed ownership of the green Maruti Van allegedly employed during the offence and stated that accused Pradip Biswas served as her driver, she produced no documentary record of his appointment and admitted that his remuneration was never reflected in any acquaintance or wage register. 30. With respect to the medical evidence, the Learned Counsel submitted that PW-24 described Sukumar Naskar as bleeding profusely when examined, although such profuse bleeding found no mention in the medical report. Likewise, the injury reports prepared by PW-26 concerning PW-2 and PW-25 omitted several material particulars, including the age and dimensions of the injuries, besides lacking the signatures of the injured persons. 31. The Learned Counsel also relied upon the evidence of PW-31, the officer who recorded the statement of PW-2 and treated it as the First Information Report. It was emphasised that the FIR omitted the names of PW-5, PW-7, 10 PW-9 and PW-20, contained no reference to PW-5 distributing wages in the spinning and winding department, omitted the allegation that PW-10 had sustained injuries from a bhojali blow, mentioned only one green Maruti Van instead of two vehicles, and contained no allegation that PW-3 had been threatened with a revolver. PW-31 further stated that PW-4 had not disclosed the presence of PW-7, PW-9 and PW-20 inside the cash office or any demand for cash directed towards them. 32. Reliance was also placed upon the testimony of PW-32, who stated that PW- 10 had never informed him that he was present in the main office on wage- disbursement duty or that PW-4 had alerted the office regarding the arrival of the assailants. According to PW-32, PW-10 merely stated that he had been supervising the security arrangements as Chief Security Officer. PW-32 further deposed that PW-4 had not stated that PW-12 and Daroga Jadav were on duty at the gate on the relevant day. 33. Lastly, the Learned Counsel referred to the evidence of PW-34, who stated that accused Lakshman Mondal, Anil Halder, Babloo Mondal and Pradip Biswas were already in judicial custody in connection with Jorasanko Police Station Case No.288 of 1999 under Section 394 of the Indian Penal Code when their production was sought. It was also highlighted that the investigating agency omitted to seize either the attendance register or the cash book, omissions which, according to the appellants, deprived the prosecution case of important contemporaneous documentary corroboration and cast a serious doubt upon the reliability of the prosecution narrative. 11 34. The Learned Advocate appearing for the State supported the judgment of conviction by contending that the prosecution had succeeded in establishing every constituent element necessary to sustain the conviction recorded under Sections 395 and 397 of the Indian Penal Code. It was submitted that the evidence demonstrated the concerted participation of more than five persons acting in furtherance of a common design to commit dacoity while armed with deadly weapons. The presence of the appellants at the place of occurrence, their respective participation in the attempted dacoity and the use of firearms, revolvers, bombs and sharp-cutting weapons stood established through a consistent body of ocular, medical and documentary evidence. According to the State, the Learned Trial Judge correctly appreciated the evidence in its proper perspective and arrived at findings fully supported by the materials available on record. 35. The State placed considerable reliance upon the Test Identification Parade conducted during the investigation. Referring to Exhibits-9 and 9/1, it was submitted that the identification proceedings furnished compelling corroboration of the prosecution case by demonstrating that the appellants had been identified by several eyewitnesses both during the Test Identification Parade and again before the Learned Trial Court. 36. The identification chart relied upon by the State reflected that in CRA No.26 of 2001, appellant Pradip Biswas was identified during the Test Identification Parade by PW-22 and subsequently identified before the Court by PW-2, PW- 3, PW-4, PW-5, PW-6, PW-10 and PW-13, whereas appellant Nirmal Purakait 12 was identified during the parade by PW-14 and thereafter before the Court by PW-5, PW-6 and PW-13. 37. In CRA No. 64 of 2001, appellant Sukumar Naskar was identified during the Test Identification Parade by PW-2, PW-3, PW-4, PW-5, PW-6, PW-10 and PW-31; appellant Lakshman Mondal was identified in the parade by PW-11 and PW-14 and before the Court by PW-2, PW-5 and PW-6. Appellant Anil Halder was identified in Court by PW-2, PW-5 and PW-6. Appellant Bablu Mondal was identified by PW-2, while appellant Asgar Sk. received identification in Court from PW-2 and PW-6. The Learned Counsel submitted that these successive identifications constituted persuasive evidence affirming the conjoint presence of every appellant at the place of occurrence and their participation in the attempted dacoity. 38. Reliance was thereafter placed upon the medical evidence to establish the authenticity of the injuries sustained by the victims. The evidence of PW-26, the examining medical officer, disclosed that PW-2, the de facto complainant and injured eyewitness, suffered a cut injury over the right side of the forehead caused by blunt force trauma to the head. The corresponding injury report was proved as Exhibit 8, and it was shown that PW-2 required admission to the E.S.I. Hospital for further treatment. 39. PW-26 also examined PW-25 Khusheswar Yadav, upon whose person injuries attributable to blunt force trauma were detected over the abdomen, left elbow and left knee. According to the medical officer, PW-25 himself narrated that those injuries had been inflicted during the course of the attempted dacoity. The injury report relating to PW-25 was proved as Exhibit 13 8/1. The Learned Counsel submitted that the medical evidence demonstrated the gravity of the assault and furnished objective corroboration of the prosecution narrative. 40. The State further contended that the testimony of the injured witnesses provided intrinsic assurance regarding the truthfulness of the prosecution case. PW-2 deposed that while wage distribution was in progress, PW-3 alerted him regarding the arrival of armed intruders inside the mill premises, whereupon the cash was shifted to a place of safety. The appellants thereafter entered the cash office armed with revolvers, bombs and sharp- cutting weapons, demanded delivery of the cash and assaulted PW-2 with the butt of a revolver. PW-2 also described the assault upon PW-10, who sustained a slash injury on his hand inflicted with a bhojali. He further narrated that while attempting to escape, the appellants hurled bombs within the mill premises after being intercepted by the workers. 41. According to the State, the testimony of PW-10 substantially corroborated the account rendered by PW-2. PW-10 confirmed that the telephone connection had been severed, that he sustained slash injuries upon his hand and back inflicted by a chopper, and that he received immediate treatment at the mill dispensary. Likewise, PW-25 stated that after responding to the commotion at the place of occurrence, he too suffered injuries caused by blows delivered with the butt of a revolver upon his left elbow and left leg. The Learned Counsel submitted that these consistent accounts furnished dependable corroboration regarding the identity of the assailants and their respective roles during the attempted dacoity. 14 42. The State also relied upon the evidence of the remaining eyewitnesses. PW-3 deposed that after hearing the alarm he reached the place of occurrence, observed the appellants fleeing, threw a brick towards them in an effort to obstruct their escape and, in consequence, was threatened with a pistol. He further heard gunfire as well as explosions caused by bombs within the mill premises. 43. PW-4 stated that he first encountered the appellants near the place of occurrence, received physical blows from them and thereafter immediately alerted the office, thereby facilitating the removal of nearly Rs.10 lakhs to a place of safety. According to the State, his testimony substantially reinforced the evidence of PW-2. 44. PW-5, the cashier entrusted with wage disbursement, narrated the entire occurrence, including the threats administered to him for delivery of the cash. His account, according to the State, received complete corroboration from PW-6, who remained beside him throughout the incident. 45. The evidence of PW-7, PW-17 and PW-21 was relied upon as constituting post-occurrence witnesses who reached the place after hearing the alarm, observed the appellants fleeing while armed with deadly weapons and witnessed appellant Sukumar Naskar being apprehended by the mill workers immediately after the occurrence. 46. The State further relied upon the seizure of bomb remnants from the place of occurrence. According to the prosecution, while attempting to flee in a Maruti Omni Van from the pursuing workers, appellant Sukumar Naskar fell from the vehicle, whereupon a bomb concealed in the bag carried by him 15 exploded. PW-21 witnessed the incident and deposed regarding the seizure of the damaged bag. The first Investigating Officer (PW-32) seized the remnants of the explosive materials, while the third Investigating Officer (PW-35) forwarded the damaged bag and explosive remnants to the Central Forensic Science Laboratory for scientific examination. The forensic report was proved collectively as Exhibit 14, thereby providing scientific corroboration to the prosecution case regarding the use of explosive substances during the commission of the offence. 47. Summarising the prosecution case, the Learned Counsel submitted that the evidence consistently demonstrated a carefully orchestrated attempt by more than five armed persons to commit dacoity by employing firearms, revolvers, bombs and sharp-cutting weapons. The occurrence stood established through the testimony of injured eyewitnesses, independent witnesses, contemporaneous medical evidence, scientific examination of explosive remnants and the successful identification of the appellants during the Test Identification Parade as well as before the Trial Court. Particular emphasis was laid upon the fact that appellant Sukumar Naskar was apprehended at the place of occurrence immediately after the explosion and that the recovery of the exploded bag and bomb remnants furnished formidable corroboration of the prosecution narrative. 48. On these foundations, the State submitted that no legal infirmity had entered the findings recorded by the Learned Trial Court. The appreciation of evidence was said to be sound, the conviction recorded under Sections 395 and 397 of the Indian Penal Code fully justified, and any interference at the 16 appellate stage would occasion a serious failure of justice by displacing a judgment firmly anchored in reliable ocular, medical, forensic and documentary evidence. 49. The principal question requiring determination is whether the prosecution has succeeded in establishing the constituent elements of the offences punishable under Sections 395 and 397 of the Indian Penal Code beyond the standard of proof demanded in criminal jurisprudence. The appellate scrutiny is, therefore, directed not merely towards the numerical sufficiency of witnesses but towards the intrinsic worth of their testimony, its consistency when examined as an integrated body of evidence, and the extent to which it receives assurance from contemporaneous circumstances, medical evidence, scientific examination and documentary materials. 50. Section 391 of the Indian Penal Code elevates the offence of robbery into dacoity where five or more persons conjointly commit or attempt to commit robbery, or where the persons present and acting in aid of such commission or attempt together constitute five or more. The legislative emphasis rests upon the collective execution of the criminal enterprise. The offence is characterised not merely by the object sought to be achieved but by the concerted participation of an armed assembly acting pursuant to a shared criminal design. 51. Section 395 of the Indian Penal Code prescribes the punishment for the completed offence of dacoity. The prosecution is therefore required to establish that the offenders acted conjointly, that the assembly consisted of 17 not fewer than five persons and that their collective conduct amounted to robbery or an attempt thereof. 52. Section 397 of the Indian Penal Code, though prescribing enhanced punishment, occupies a distinct field. The provision operates where, at the time of committing robbery or dacoity, the offender employs a deadly weapon or causes grievous hurt or attempts to inflict death or grievous hurt. Judicial pronouncements of the Supreme Court have consistently explained that the expression "uses any deadly weapon" is not confined to the actual infliction of injury. The display of a deadly weapon in a manner calculated to intimidate the victim and facilitate the commission of the offence sufficiently attracts the statutory requirement, provided the weapon forms an integral part of the criminal act. 53. The evidence of PW-2, the injured de facto complainant, constitutes the foundation of the prosecution case. His presence at the place of occurrence admits little controversy since he sustained injuries during the incident, supported by the medical evidence of PW-26. His testimony describes that approximately ten to twelve armed persons entered the cash office while wage distribution was in progress, severed the telephone connection, demanded delivery of cash, threatened the employees with revolvers and bhojalis and assaulted him with the butt of a revolver when the demand could not be fulfilled. The evidence further revealed that bombs were hurled during the escape of the assailants. 54. This narrative received substantial assurance from PW-5, the cashier entrusted with wage disbursement, PW-6 who remained beside him 18 throughout the occurrence, PW-10 who sustained a slash injury inflicted by a sharp-cutting weapon and PW-25 who also suffered injuries while responding to the incident. These witnesses describe the same transaction from different vantage points, yet their testimony converges upon the principal features of the occurrence. Such convergence, despite natural variations in peripheral details, furnishes a degree of reliability that inspires judicial confidence. 55. The medical evidence substantially fortifies the ocular account. PW-26 recorded a cut injury over the forehead of PW-2 caused by blunt force trauma. The injuries noticed upon PW-25 likewise correspond with the manner of assault narrated before the Court. Medical evidence, though ordinarily corroborative in character, assumes greater significance where it harmonises with the direct testimony of injured witnesses. The present record revealed no inconsistency capable of displacing that harmony. 56. The defence has devoted considerable emphasis to certain omissions, discrepancies and investigative deficiencies. The argument, though elaborately advanced, fails to erode the central prosecution narrative. 57. The contradictions relied upon by the appellants primarily concern the precise amount of cash available in the office, the exact location occupied by individual witnesses, omissions appearing in previous police statements and certain descriptive details omitted from the First Information Report. Those aspects belong to matters collateral to the principal occurrence. Criminal trials do not proceed upon the expectation that every witness shall reproduce an identical account with mechanical precision. Variations relating to 19 subsidiary circumstances are often a natural consequence of independent observation, lapse of time and differing perceptions of a sudden occurrence involving considerable violence. 58. What assumes significance is whether the witnesses remain consistent regarding the essential features constituting the offence. Upon that aspect, the prosecution evidence speaks with remarkable consistency. Every material witness describes the arrival of a large armed group, the demand for cash, the use of revolvers, bombs and sharp-cutting weapons, the assault upon the employees entrusted with wage distribution and the hurried retreat accompanied by explosions outside the mill premises. These are the facts that constitute the gravamen of the prosecution case and upon these aspects the evidence remains substantially harmonious. 59. The criticism directed towards the non-seizure of the attendance register and the cash book also fails to persuade this Court. Such omission may reflect an imperfect investigation. Nevertheless, it is firmly settled that lapses committed by the investigating agency cannot invariably enure to the benefit of the accused where reliable substantive evidence independently establishes the occurrence. The function of the Court is to evaluate the evidence actually produced rather than speculate upon materials which might have been collected during investigation. 60. The submission concerning the Test Identification Parade also deserves consideration. A Test Identification Parade does not constitute substantive evidence. Its evidentiary value lies in furnishing corroboration to the identification of an accused before the Court. In the present case, several 20 appellants were identified during the Test Identification Parade and thereafter identified again by witnesses during trial. Such identification receives additional assurance from the surrounding circumstances, particularly in relation to appellant Sukumar Naskar, whose apprehension at the place of occurrence immediately following the explosion of the bomb carried by him constitutes an independent incriminating circumstance. 61. The Hon’ble Supreme Court in Mukesh Singh Vs. The State (NCT OF DELHI)1, observed the following:- “26. What is prohibited by Article 20(3) of the Constitution is procuring by compulsion of the positive volitional evidentiary acts of an accused. It is true that an accused may be said to be compelled to attend a test identification parade, but this compulsion does not involve any positive volitional evidentiary act. His mere attendance or the exhibition of his body at a test identification parade even though compelled, does not result in any evidentiary act until he is identified by some other agency. The identification of him by a witness is not his act, even though his body is exhibited for the purpose. His compelled attendance at a test identification parade is comparatively remote to the final evidence and cannot be said by itself to furnish any positive volitional evidentiary act. ....... 28. Bhattacharya, J. by his separate but concurring judgment observed thus:- 20. If, as we find, taking of thumb impression is not violative of Article 20(3), with greater force the reasons set out above mutatis mutandis will be applicable to a case directing the production of the accused in a test identification parade, apart from such consideration as interposition of a magisterial order. 1 2023 INSC 765 21 It is not the accused who is called upon to testify against himself but somebody else on seeing him and others now in the parade may have something to say later on. The accused does not produce any evidence or perform any evidentiary act. It may be a positive act and even a volitional act, but only to a limited extent, when he walks to the place where the test identification parade is to be held, as has been urged by Mr. Dutt, but certainly it is not his evidentiary act. The view that we take in the instant case is in full accord with the test of positive volitional evidentiary act laid down by the Supreme Court in the case of M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.” [Emphasis supplied] 43. A three-Judge Bench of this Court in the case of Rajesh v. State of Haryana, (2021) 1 SCC 118, had the occasion to consider (i) the purpose of conducting a TIP, (ii) the source of the authority of the investigator to do so, (iii) the manner in which these proceedings should be conducted, (iv) the weight to be ascribed to identification in the course of a TIP, and (v) the circumstances in which an adverse inference can be drawn against the accused who refuses to undergo the process. After due consideration of the aforesaid, this Court summarised the principles as follows:- “43.1 The purpose of conducting a TIP is that persons who claim to have seen the offender at the time of the occurrence identify them from amongst the other individuals without tutoring or aid from any source. An identification parade, in other words, tests the memory of the witnesses, in order for the prosecution to determine whether any or all of them can be cited as eyewitness to the crime. ........” 45. In Munshi Singh Gautam (D) & Ors. v. State of M.P., reported in (2005) 9 SCC 631, this Court observed as under:- 22 “16. … The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Evidence Act. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such an allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. 17. .....The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can 23 safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. …” 47. In Malkhansingh v. State of M.P., (2003) 5 SCC 746, a three-Judge Bench of this Court considered the evidentiary value of the identification of the appellant in that case by the prosecutrix in the Court without holding a TIP in the course of the investigation. It was argued before the Court that the identification in Court not preceded by a TIP is of no evidentiary value. On the other hand, it was argued on behalf of the prosecution that the substantive evidence is the evidence of identification in Court and, therefore, the value to be attached to such identification depends on facts and circumstances of each case. The Court ultimately answered as under:- 7. ........The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In 24 appropriate cases it may accept the evidence of identification even without insisting on corroboration.” [Emphasis supplied]” 62. The recovery of the damaged bag, seizure of explosive remnants and the forensic examination reflected in Exhibit-14 introduce a scientific dimension to the prosecution case. These circumstances accord complete consistency with the ocular evidence describing the explosion which occurred while Sukumar Naskar attempted to flee with the remaining members of the assembly. 63. Particular significance also attaches to the evidence of the injured witnesses. The jurisprudential principle governing such testimony has repeatedly received recognition from the Supreme Court. An injured witness carries an inherent guarantee of presence at the scene of occurrence, and ordinarily possesses little reason to substitute the real offender with an innocent person while concealing the identity of the actual assailant. Although such evidence is not elevated above every other category of testimony, it commands considerable evidentiary weight when it receives corroboration from independent circumstances. The present case satisfies that requirement through medical evidence, contemporaneous seizure of explosive materials, forensic examination and the testimony of several independent witnesses. 64. The submission that the appellants deserved the benefit of probation also cannot be accepted. The offence concerns an organised armed assault upon a cash office during wage disbursement, accompanied by firearms, bombs, 25 sharp-cutting weapons and physical violence directed against several employees. The gravity of the offence, the degree of planning involved and the potential danger created for numerous workmen place the case far beyond the sphere within which the reformative provisions contained in Section 360 of the Code of Criminal Procedure or the Probation of Offenders Act ordinarily operate. 65. The Hon’ble Supreme Court in Deepak @ Wireless vs. State of Maharashtra2 held the following:- “7. In the abovesaid background of the case pleaded by both the parties, when we examine the case on hand, the appellant was convicted and imposed with sentences for the offences falling under Sections 395, 396 and 397 IPC. When we examine the said offences alleged and found proved against the appellant, it will have to be stated that when a person is involved in an offence of theft of higher magnitude, then it becomes dacoity and when dacoity is committed with murder and also results in causing grievous hurt to others, it becomes robbery punishable under Sections 395, 396 and 397 IPC. In other words, when the offence of theft is committed conjointly by five or more persons, it becomes dacoity and if such dacoity by those persons also results in commission of murder as well as causing of grievous hurt to the victims, it results in an offence of robbery. A reading of Sections 395, 396 and 397 IPC makes the position clear that by virtue of the conjoint effort of the accused while indulging in the said offence makes every one of them deemed to have committed the offence of dacoity and robbery. In the result, when such offences of dacoity and robbery are committed, the same result in the death of a person or hurt or wrongful restrain or creating fear of instant death or instant hurt or instant wrongful restraint. In substance, in order to find a person guilty of 2 (2012) 8 SCC 785 26 the offences committed under Sections 395, 396 and 397 IPC, his participation along with a group of five or more persons indulging in robbery and in that process committing murder and also attempting to cause death or grievous hurt with deadly weapons would be sufficient. Use of a knife in the course of commission of such a crime has always been held to be use of a deadly weapon.” 66. The Hon’ble Apex Court in Mohammad Wajid & Anr. Vs. State of U.P. & Ors.3 observed as follows:- “14. Theft amounts to ‘robbery’ if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. Before theft can amount to ‘robbery’, the offender must have voluntarily caused or attempted to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. The second necessary ingredient is that this must be in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft. The third necessary ingredient is that the offender must voluntarily cause or attempt to cause to any person hurt etc., for that end, that is, in order to the committing of the theft or for the purpose of committing theft or for carrying away or attempting to carry away property obtained by the theft. It is not sufficient that in the transaction of committing theft, hurt, etc., had been caused. If hurt, etc., is caused at the time of the commission of the theft but for an object other than the one referred to in Section 390, IPC, theft would not amount to robbery. It is also not sufficient that hurt had been caused in the course of the same transaction as commission of the theft. … 3 2023 INSC 683 27 17. Ordinarily, if violence or hurt is caused at the time of theft, it would be reasonable to infer that violence or hurt was caused for facilitating the commission of the theft or for facilitating the carrying away of the property stolen or for facilitating the attempt to do so. But there may be something in the evidence to indicate that hurt or violence was caused not for this purpose but for a different purpose. …” 67. In Ram Ratan Vs. State of M.P.4, the Hon’ble Supreme Court observed as follows:- “15. Further, in Dilawar Singh vs. State of Delhi (2007) 12 SCC 641, it is held as hereunder: “19. The essential ingredients of Section 397IPC are as follows: 1. the accused committed robbery. 2. while committing robbery or dacoity (i) theaccused used deadly weapon (ii) to cause grievous hurt to any person (iii)attempted to cause death or grievous hurt to any person. 3. “Offender” refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But the other accused are not vicariously liable under that section for acts of the co-accused. …. 4 2021 INSC 912 28 16. In the decision of Ganesan (supra) referred to by the Learned Counsel for the appellant, the above noted decisions of this Court has been referred and this Court has held as hereunder:- “12.7. Thus, as per the law laid down by this Court in the aforesaid two decisions the term ‘offender’ under Section 397 IPC is confined to the ‘offender’ who uses any deadly weapon and use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who has not used any deadly weapon. Even there is distinction and difference between Section 397 and Section 398 IPC. The word used in Section 397 IPC is ‘uses’ any deadly weapon and the word used in Section 398 IPC is ‘offender is armed with any deadly weapon’. Therefore, for the purpose of attracting Section 397 IPC the ‘offender’ who ‘uses’ any deadly weapon Section 397 IPC shall be attracted. …. Therefore, in absence of any allegations of use of any deadly weapon by the appellants herein- Accused Nos.1 and 3 Section 397 IPC shall not be attracted and to that extent the Learned Counsel appearing on behalf of the appellants- accused are right in submitting that they ought not to have been convicted for the offence punishable under Section 397 IPC.” 17. From the position of law as enunciated by this Court and noted above, firstly, it is clear that the use of the weapon to constitute the offence under Section 397 IPC does not require that the 'offender' should actually fire from the firearm or actually stab if it is a knife or a dagger but the mere exhibition of the same, brandishing or holding it openly to threaten and 29 create fear or apprehension in the mind of the victim is sufficient. The other aspect is that if the charge of committing the offence is alleged against all the accused and only one among the 'offenders' had used the firearm or deadly weapon, only such of the 'offender' who has used the firearm or deadly weapon alone would be liable to be charged under Section 397 IPC. 18. Though the above would be the effect and scope of Section 397 IPC as a standalone provision, the application of the same will arise in the totality of the allegation and the consequent charge that will be framed and the accused would be tried for such charge. In such circumstance, in the teeth of the offence under Section 397 IPC being applicable to the offender alone, the vicariability of the same will also have to be noted If the charge against the accused under Sections 34, 149 IPC and such other provisions of law, which may become relevant, Is also Invoked along with Section 397 IPC. In such event, I will have to be looked at differently in the totality of the facts, evidence and circumstances involved in that case and the provisions invoked in that particular case to frame a change against the accused, In the instant case the charge under Section 34 IPC was framed against the appellant nor was such an allegation raised and proved the appellants. Hence, benefit of the interpretation raised on the scope of Section 397 IPC to hold the aggressor alone as being guilty, will be available to the appellant if there is no specific allegation against him.” 68. In Udayakumar Vs. State of Tamil Nadu5, the Hon’ble Apex Court held the following:- “9. This Court in the case of Anil Phukan v. State of Assam, (1993) 3 SCC 282 has held that: “3. … So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a 5 2023 INSC 239 30 wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect…” 10. Examining the testimony of PW-1, we find him to be materially contradicted and his version belied through the testimony of the Investigation Officer, (PW-23). This is with regard to the identification of the accused. Whereas the former states that he identified the accused in front of the judge, pursuant to the summons issued to him for making himself available at Pulhal Jail, Chennai for the purpose of identifying the accused, but the latter, in unequivocal terms states that, “… it is correct to say that PW-1 would give the statement that they came to know that the second accused Udayakumar had murdered Purushothaman” and that “it is correct to say that only after identifying the accused at the Police Station, they had identified the accused at the identification parade.” Now, if the identity of the accused was already in the knowledge of the police or the witnesses, then we only wonder, where would the question of conducting the identification parade arise? We reiterate that the entire necessity for holding an investigation parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. [Heera v. State of Rajasthan, (2007) 10 SCC 175]. We may also state that the investigation parade does not hold much value when the identity of the accused is already known to the witness. [Sheikh Sintha Madhar v. State, (2016) 11 SCC 265]. This Court has 31 elaborately stated the purpose of conducting the identification parade in the case of State of Maharashtra v. Suresh, (2000) 1 SCC 471 as: “22. … We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. So the officer conducting the test identification parade should ensure that the said object of the parade is achieved. If he permits dilution of the modality to be followed in a parade, he should see to it that such relaxation would not impair the purpose for which the parade is held [vide Budhsen v. State of U.P., (1970) 2 SCC 128; Ramanathan v. State of T.N., (1978) 3 SCC 86].” 69. Viewed cumulatively, the evidence establishes that a group consisting of substantially more than five persons entered the mill premises pursuant to a common criminal design, attempted to obtain possession of the wage disbursement money through intimidation and violence, assaulted the employees entrusted with custody of the cash, employed deadly weapons including revolvers, bhojalis and bombs and thereafter attempted to escape while continuing the assault by exploding bombs. Each of these circumstances corresponds directly with the statutory ingredients embodied in Sections 391, 395 and 397 of the Indian Penal Code. 70. The appreciation of evidence undertaken by the Learned Trial Judge displays careful adherence to settled principles governing criminal trials. The findings recorded do not suffer from any legal or factual infirmity warranting 32 appellate intervention. The conviction rests upon a body of evidence that remains consistent on every material aspect, receives assurance from independent sources and satisfies the statutory ingredients of the offences beyond reasonable doubt. 71. In view of the above discussion, the sentence is modified to the extent of incarceration undergone by the appellants. 72. There is no order as to costs. 73. Trial Court records along with a copy of this judgment be sent down at once to the Learned Trial Court for necessary action. 74. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. (Ananya Bandyopadhyay, J.)