1 IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Ananya Bandyopadhyay C.R.A. 765 of 2006 With CRAN 3 of 2011 (OLD No.CRAN 2067 of 2011) Amit Kumar Gupta Vs. The State of West Bengal And CRA 193 of 2009 Daman Rai @ Chhotia & Ors. -Vs- The State of West Bengal For the Appellant : Mr. Anand Keshari (Amicus Curiae) For the State : Mr. Avishek Sinha Heard on : 01.04.2024, 13.06.2024, 22.07.2024, 29.07.2024 Judgment on : 08.05.2025 Ananya Bandyopadhyay, J.:- 1. This appeal is preferred against the judgment and order dated 05.08.2006 passed by the Learned Additional Sessions Judge, Fast Track Court-I, Bichar Bhawan, Kolkata in Sessions Trial No.3 of April, 2005, Sessions Case No.4 of 2005, thereby convicting the accused appellant under Section 395/397 of the Indian Penal Code and sentenced to suffer 2 rigorous imprisonment for a term of 7 years and to pay a fine of Rs.1,000/-, in default, to suffer rigorous imprisonment for one year more for the offence punishable under Section 395 of the Indian Penal Code and also sentenced to suffer rigorous imprisonment for a period of 7 years for the offence punishable under Section 397 of the Indian Penal Code. 2. The appellant above named along with 4 others had been placed in a criminal trial being Sessions Trial No.3 of April, 05, Sessions Case No.4 of 05 in the Court of the Learned Additional Sessions Judge, Fast Track Court-I, Bichar Bhawan, Kolkata in connection with Burrabazar Police Station Case No.58 dated 22.04.2004 under Section 395/397 of the Indian Penal Code and Section 25(1B)(a)/27 of the Arms Act. 3. The prosecution case precisely stated on 22.04.2004 when the complainant working at his office with other colleagues at about 15:00 hrs., some customers were inside the office and at that time 5/6 persons entered into the office and approached the cash counter and threatened them at the point of fire arm, bhojali etc. and thereafter one of the miscreants holding a chopper had rushed to the cash counter and hit the cashier Pawan Bazaz on his head with the said chopper resulting severe bleeding injury and also demanded money and further another miscreant holding a fire arm directed to the remaining miscreants to tie their hands with rope and put leucoplast on their mouth and in the meantime, another miscreant entered into the cash counter and started lifting money from the cash table and keeping the money inside 3 bags which they brought and at that time another miscreants were engaged in disconnecting the telephone lines and tying up his hands and hands of 3 others and putting adhesive tape on their mouth thereafter all the said miscreants had fled with cash after putting latch on the main door and thereafter the complainant somehow managed to untie the rope from his hand and others and called the other businessmen in the area and ultimately it was detected that a sum of Rs.16,00,000/- approximately in different denominations were robbed of by the said miscreants, hence this case. 4. After completion of investigation, police submitted charge-sheet against the five accused persons under Sections 395/397 of the Indian Penal Code and thereafter considering the materials on record and after hearing the submissions of the respective parties, the Learned Court framed charge under Sections 395/397 of the Indian Penal Code which was read over and explained to them to which they pleaded not guilty and claimed to be tried. 5. The Learned Amicus Curiae representing the appellant submitted as follows:- i. The victim eye witness in this case was examined as PW-8 did not identify the appellant as the assailant. He was the best witness who could have correctly narrated and identified the appellant, but unfortunately, the victim was not even taken to the Test Identification Parade of the appellant. ii. The investigation was taken up on 22.04.2004, but the appellant was shown arrested in connection with this case on 01.09.2004 after a period of more than four months. The Investigating Officer who was examined as PW-18 failed to explain in his examination-in-chief as to how he came to know 4 that the appellant and others were involved in this case. The first person to be shown arrested in connection with this case was Baleswar Ruidas while he was in custody in connection with another case. According to the said accused, the other accused persons were arrested. The appellant was also arrested in connection with this case only when he was already in custody with another case. The question was as to how did the Investigating Officer knew that Ruidas was involved and then one after the other the accused who were already in custody were shown arrested. iii. The question of false implication could not be ruled out, more so when the entire case was based on identification of the appellant by the alleged eye witness after four months of the initiation. The question of false implication could not be ruled out also because the Investigating Officer failed to recover any money from the possession of the appellant or others. iv. The Investigating Officer also failed to explain in his examination, the fact that the appellant when shown from another case was in custody in that case from which date. The question that whether the accused was already in custody in connection with another case on the date of the incident, then the question of his committing the crime did not arise at all. v. The fact that the independent witness, i.e., the customers who were examined as PW-5 and PW-6 had not been able to identify the appellant as one of the miscreants, which again cast a 5 doubt on the prosecution case and created a doubt about the false implication of the appellant in this crime. vi. The entire case was solely based on the oral testimony of the alleged eye-witnesses who were the employees of the office where the incident occurred and they had admitted in their examination that the police officers had approached their office on many occasions and hence the chances of the police officers showing the photographs of the appellant and others could not be ruled out. vii. The Test Identification Test Report so exhibited in connection with this case also failed to record that the appellant was mixed up with other under trial prisoners of similar built or not, thereby creating a doubt about the entire exercise being a sham. viii. The prosecution was not able to prove the case beyond all reasonable doubt and hence the judgment and order of conviction so passed should be set aside and the appellant should be acquitted. 6. Considered the submission of the Learned Advocate representing the State. 7. The circumspection of evidence of the prosecution witnesses revealed as follows:- i. The evidence brought forth through the deposition of prosecution witnesses reveals a detailed account of the events that transpired on the 22nd of April, 2004, at the office of Aravali Commercial Services Pvt. Ltd., situated at 113B, Manohardas Katra, Calcutta-7. PW-1, a constable from the 6 Photography Section, stated that he had received a telephonic message from the Officer-in-Charge of Burrabazar Police Station directing him to proceed to the said address for photographic documentation. Upon arrival, he was taken to the third floor of the building by police personnel, where he observed the office of the aforementioned firm. Under the instruction of Sub-Inspector Malay Bose, he took two photographs—one depicting the signage of the office along with the entrance gate and the other capturing the interior view of the office from outside. The photographs, along with their negatives, were developed at the office laboratory in Lalbazar. During cross-examination, PW-1 clarified that he had not recorded any General Diary Entry nor did he report the instruction to his superior officer. He admitted that he did not visit Burrabazar Police Station in connection with the incident and had taken the photographs between 4:00 PM and 5:00 PM on the same day. He further confirmed that while certain details like furniture, bloodstains, or telephones could have been captured in the images, the same were either absent or indiscernible from the photographs taken. There were no inscriptions on the office gate shown in the photographs and no date was imprinted on either the prints or the negatives. ii. PW-2, tasked with preparing the sketch and layout of the scene, testified that he too had been directed verbally by his Officer-in- Charge to survey the premises and draw up a rough sketch. Upon his arrival, he was informed by Sub-Inspector Malay Bose about the specific location of the office on the third floor. There, 7 under the latter’s guidance, PW-2 prepared a rough sketch of the place of occurrence and the immediate surroundings. He also identified the sketch map, the final scaled print prepared at his office, and the mechanically reproduced blueprints. The rough sketch included details such as counters, sofas, and the general layout of the office. The abbreviation R.S.C. denoted rolling shutters that were closed, while P.O. indicated the place of occurrence. During his cross-examination, PW-2 conceded that he had not made a General Diary Entry at Burrabazar Police Station and admitted to omissions in the sketch, including the signboard of the firm, furniture such as chairs and tables, and other fixtures like almirahs, lockers, or telephones. He testified that the sketch was made on-site at the time of his visit, and despite having a diploma in civil engineering, the final blueprint did not reflect every detail he had observed. Nonetheless, he affirmed that except for minor exclusions such as chairs, the sketch and blueprint were consistent with one another. He acknowledged having no subsequent contact with the Investigating Officer after submitting the prints. iii. The narrative assumed a different depth through the deposition of PW-3, a female employee of the said firm, who presented an eye-witness account of the dacoity. Employed at Aravali Commercial Services Pvt. Ltd., she recounted the regular operational hours of the office and listed the staff present on the day of the incident. She stated that at around 3:00 PM on the 8 22nd of April, while she and another colleague, Prity Sethia, were working at their respective counters, 5 to 6 individuals entered the premises masquerading as customers. Once inside, two of them secured the entrance by bolting the door from inside. Two others advanced toward the counter, and the remaining intruded into the cash area. They were armed with revolvers and 'bhojali' (a kind of blade), and began assaulting the few customers present. The hands of the customers were tied, and their mouths sealed with leucoplast to prevent any cries for help. The miscreants severed the telephone line before physically restraining both Prity Sethia and PW-3, tying their hands with thread and sealing their mouths with leucoplast. Thereafter, they physically assaulted the cashier, Pawan Bajaj, using the butt of a revolver, which led to profuse bleeding. The miscreants proceeded to loot the office cash intended for deposit, placing the money in a bag they had brought, and exited the premises, locking the door from outside. PW-3 narrated that it was only after Promode Tewari managed to free himself and others that they raised an alarm, drawing attention from neighbouring offices. The employer of staff was informed and police were called. Approximately Rs. 16 lakhs was determined to have been looted. PW-3 later identified five of the accused during a Test Identification Parade conducted at Presidency Jail. iv. The cross-examination of PW-3 cast light on additional aspects of the incident. She acknowledged the absence of formal 9 documentation proving her employment at the firm, stating that she was engaged in preparing cheques in exchange for cash from clients. She admitted that she was unaware of the daily cash inflow or the precise amount transacted on the day of the dacoity. The police had not seized the chequebook in which she had made entries. She clarified that the ropes with which she and her colleague were tied remained at the counter until the arrival of police. PW-3 denied that any other customers were pushed inside by the miscreants. She could not recall giving a detailed description of the bag used by the assailants or whether she had ever seen any of the miscreants wearing earrings, although she did identify the accused Daman Rai as having worn one. She was unable to recall specific details of the court proceedings and the layout of the court where the identification parade was held, attributing her uncertainty to the passage of time. Despite lapses in memory concerning procedural aspects, she remained unequivocal in her assertion that the five accused were present during the commission of the offence. v. PW-3 stated that she had conveyed to the police that the miscreants communicated amongst themselves in Hindi and that she could observe everything from her position at the counter. She further affirmed that she and her colleague were initially bound with thread and had leucoplast affixed to their mouths. The office's cash collection period extended till 6:00 PM, and on the day in question, she had remained at work till 10 that time. She recollected that among the three customers present, two were named Shyamal and Banti, and that their statements had been recorded by police. The police reportedly arrived at the scene some 35 to 40 minutes after the incident. The initial statement was taken from Promode Tewari, though she could not say how many others had given statements that day. She described the act of being threatened with a weapon, including a bhojali pressed against her throat, and recalled the division of the office into two distinct areas—a cash counter and a cheque counter. The blood-stained garments of Pawan Bajaj were noted, although she could not remember if any blood had stained the floor. She added that police visited the office several times after the incident but she was unable to specify the dates. Approximately one to two months following the incident, she was summoned for the Test Identification Parade. Her journey to the jail and interaction with jail officials was briefly recounted. She stated that she had secured the job through a private service agency and had not received an appointment letter. Verification of her employment could be made from the attendance register and other documentation maintained at the office. Though unable to recall several procedural nuances due to the lapse of time, she remained consistent in her core narrative about the events that unfolded on the fateful afternoon. vi. The testimonies of PW-1 and PW-2 provided structural and visual evidence of the scene, while PW-3’s narration gave voice 11 to the trauma and the fear inflicted upon the victims. Her recollections of the assailants' modus operandi, the sequential binding and silencing of employees and customers, and the precision of the loot pointed towards a well-planned and calculated operation. Each of the witnesses, despite variations in scope and detail, contributed to a broader and coherent picture of the events that culminated in the grave incident of dacoity within the premises of Aravali Commercial Services Pvt. Ltd. vii. .PW-4, an employee of Aravali Commercial Services Pvt. Ltd. at 113B, Manohardas Katra, Calcutta, deposed that the firm dealt in Hundis and functioned as a commission agency, operating from 10:00 AM to 7:00 PM. On 22.04.2004, during working hours, a dacoity took place at their office, which was spread across three chambers—one housing the cash counter, another occupied by the proprietors Rupchand Sethia and VinodeGujrani, and a third where Priti Sethia and Tultul Sil worked on cheque preparation. viii. At about 3:00 PM, four miscreants initially entered the premises, followed by two more. Two of the first group proceeded into the cash counter—one brandishing a firearm and the other a knife (chaku). The one with the knife assaulted the cashier, Pawan Bajaj, on the head, causing bleeding injuries, while the other threatened him with the firearm and demanded cash. The miscreants looted approximately Rs. 16 lakhs, placing the cash into three or four bags. PW-4, who was 12 present inside the cash counter, was bound and gagged with leucoplast, as were Pawan Bajaj, Priti Sethia, and Tultul Sil. The dacoits also disconnected the office telephone line and issued threats to those present. After locking the office shutter from outside upon exit, the miscreants fled. ix. PW-4 managed to untie himself and then assisted in freeing the others. They alerted nearby shopkeepers, who helped open the shutter. The owners were informed, and subsequently, the police arrived. PW-4 identified the sealed materials recovered by the police, including the telephone sets, pieces of 'rashi' used to tie them, and the leucoplast used to gag them. He also identified five accused persons during a Test Identification Parade at Alipore Jail, including Vinode Turi and Amit Kr. Gupta, who had respectively wielded the firearm and the knife during the assault on Pawan Bajaj. x. In cross-examination, PW-4 stated he had worked at the firm for five years and had left on 30.04.2005. He clarified that the third floor of the premises housed 6–7 offices, of which some remained closed. He explained the firm’s operational setup— cash transactions were handled by him and Pawan Bajaj using two counting machines, and there was no computerised recordkeeping. PW-4 admitted he could not specify the exact amount of cash transacted or the number of deposited cheques on the day of the incident. He also confirmed the absence of any formal security arrangements and said their employers had informed them that Rs. 16 lakhs had been looted. 13 xi. He described the office layout, including customer seating and the arrangement of chambers with partial partitions and open doors. Though he could not state whether cash books were maintained, he reiterated that he and Pawan Bajaj were responsible for cash handling. He described the entry of the dacoits, the binding and gagging, and confirmed that the miscreants communicated in Hindi and Bengali. The dacoity lasted for about 10–12 minutes, and police arrived shortly thereafter. His statement was recorded between 3:30–3:45 PM. He acknowledged that the police did not read back his statement to him, and he had made only one such statement. xii. He also clarified that the identification parade was conducted at Alipore Jail, but he could not recall the specific court or magistrate details. He affirmed that he had never seen the accused persons except on three occasions—the day of the incident, the T.I. parade, and in court. He stated that although he gave the miscreants' description to police, he had not informed them that all the miscreants were armed with firearms. He stated that the cash was taken in black bags. xiii. In further cross-examination, PW-4 admitted he had no formal documentation of his employment but mentioned the existence of an attendance register. He did not understand what Hundis were, despite acknowledging the firm dealt with them. He estimated that around 40–50 people had visited the office for Hundi transactions earlier that day. At the time of the dacoity, 2–3 customers were present, though he could not recall their 14 names or whether police recorded their statements. He admitted that someone from outside the office had likely informed the police. PW-4 provided a detailed account of the identification parade logistics but failed to recall exact dates or courtrooms. He reiterated that the miscreants had first interacted with Pawan Bajaj outside the cash counter and then entered forcibly. He also confirmed the presence of two telephone sets with the same number in the office. His statement was recorded soon after police first saw Pawan Bajaj, who was seriously injured. xiv. PW-4 thus provided a comprehensive, though occasionally imprecise, narration of the events during and after the dacoity, including the manner of execution, identification of accused, police procedures, and the firm’s operations. xv. PW-5 deposed that on 22nd April 2004, he had gone to the office of M/s. Aravali Commercial Services Pvt. Ltd., situated on the third floor of 13B, Manohardas Katra, Calcutta-7, to receive a cheque in exchange for money. Having reached the said office at around 2:45 PM, he was standing near the cash counter when, at about 3:00 PM, a group of five to six miscreants barged into the office. One of the assailants immediately placed a pistol against his back and warned him not to raise an alarm. The assailants then proceeded to threaten the other occupants of the office with death should they try to resist or raise their voices. PW-5 was taken to another room where two female employees were engaged in writing cheques, and there, his hands and feet were tied with ropes. The miscreants then went 15 to the cash counter, where one of them assaulted the cashier, Pawan Bajaj, with a sharp weapon described as a ‘bhojali,’ causing injuries on his head that led to profuse bleeding. The miscreants tied up Pawan Bajaj, another employee named Promode Tewari, and the two women clerks, pasting leucoplast over their mouths to prevent them from making noise. xvi. The miscreants collected the cash stored in the cash counter, bundled it into bags, and thereafter fled the premises, pulling the shutter down from the outside. Once the accused had departed, Promode Tewari managed to untie his own bindings and subsequently helped release the others. After removing the leucoplast from their mouths, they proceeded towards the shutter and began shouting “dakat, dakat,” attempting to attract the attention of nearby occupants of the market. A person from a neighbouring shop eventually opened the shutter from the outside. Following this, the employees stepped out and continued shouting for help. Subsequently, someone informed the proprietors of the establishment, namely Rupchand Sethia and VinodeGujrani, about the occurrence. Upon their arrival, the owners verified the cash book and determined that approximately sixteen lakhs of rupees had been looted. Thereafter, the police were informed and promptly arrived at the scene. PW-5 stated that the police seized materials from the office, including ropes used to tie them, rolls and loose pieces of leucoplast, and the disconnected telephones. He recognised and identified the seized items as the ones used during the incident. 16 PW-5 described the accused persons as being of medium complexion, thinly built, and aged between 25 and 30 years. xvii. In cross-examination, PW-5 admitted that he worked for a firm named Knod Enterprises, which dealt in poplin cloth, and that he had been visiting the Aravalli office for business purposes on a few occasions over the past few years. He could not, however, recall specific details regarding the cheque he had delivered on that day. He did not witness any specific identification marks on the seized telephones, leucoplast, or ropes and acknowledged that such items could be procured from open markets. PW-5 had not personally shouted for help but affirmed that others had done so. He also could not confirm the number of bags the miscreants used to carry the looted cash or the precise amount stolen. Furthermore, he stated he had not recognised any of the miscreants and did not possess any knowledge about the accounting practices of the firm. xviii. PW-5 clarified that his employer, Mulchand Rathi, had no familial ties with the owners of Aravalli Commercial Services. While he had visited the Aravalli office two or three times for cheques or cash, he did not know the identity of the nearby shopkeepers who had opened the shutter or responded to their calls for help. He reiterated that although he was present during the police investigation, he could not recall which employee’s statement was recorded first. He mentioned the presence of another customer during the incident, but was unable to identify or name him. 17 xix. PW-6 corroborated the incident of dacoity and stated that on 22nd April 2004, at around 2:35 to 2:40 PM, he had gone to M/s. Aravalli Commercial Services Pvt. Ltd. for the purpose of depositing money. Upon arrival, he observed two cashiers at the cash counter, and in another room, two women employees engaged in issuing cheques. He stood in queue behind two other customers waiting to deposit money. Soon after he deposited his sum, a group of five or six assailants entered the premises. The sudden and aggressive entry caused panic. The miscreants, armed with firearms and knives, immediately began threatening the staff and customers. xx. As per PW-6’s account, the miscreants took control of the office by force. One of the miscreants jumped over the counter, brandishing a weapon, and began physically attacking the staff. The cashier Pawan Bajaj was again mentioned as being brutally assaulted, and other employees and customers were similarly tied up and silenced with leucoplast. PW-6 narrated that the cash from the counter was forcibly seized and packed into bags before the miscreants fled the scene, pulling the shutter down to lock everyone in. Following their escape, Promode Tewari once again was said to have untied himself and freed the rest, after which they all shouted from inside the premises. xxi. Their cries for help reached nearby shopkeepers, one of whom opened the shutter from the outside. The office staff and customers then stepped outside and raised further alarm. Soon after, the owners were informed, who came to assess the 18 damage and later called the police. PW-6 remained present during this time and witnessed the arrival of the police, the taking of photographs, and the seizure of evidence from the crime scene. Although he did not mention the amount deposited or specific figures relating to the dacoity, he confirmed the essential facts surrounding the attack, the presence of multiple armed miscreants, the manner in which the office staff and customers were restrained, and the looting of cash. xxii. His deposition reinforced the timeline of events and substantiated the presence of multiple customers and staff members during the incident. While PW-6 could not provide specific information about the accused, nor could he identify them later, his description aligned with those given by PW-4 and PW-5 regarding the method employed by the miscreants and the way in which the victims were subdued. His account also detailed the environment of the office, its layout with multiple rooms and cash counters, and confirmed the lack of any security measures in place, such as guards or alarms. xxiii. Both PW-5 and PW-6, as customers present at the scene, offered independent corroboration of the sequence of events narrated by the employees. Their statements reveal a consistent pattern of conduct by the perpetrators, the use of force, the act of tying up and silencing witnesses, the targeted seizure of cash, and the miscreants' methodical departure after locking the premises. Though neither PW-5 nor PW-6 could name or identify the accused, their testimony contributes to establishing 19 the environment and context in which the offence took place, and the traumatic experience endured by all those present. Their depositions, when read with the evidence of PW-4, form a coherent narrative of a planned and violent act of dacoity carried out in broad daylight in a commercial establishment. 8. In a case of dacoity if reliable and trustworthy direct eye-witnesses have identified the accused persons in a properly conducted Test Identification Parade. Non-recovery of stolen articles does not ipso facto weaken the prosecution case not does it require further corroboration. In the instant case, PW-3 a female employee of the farm along with PW-4, PW-5 and PW-6 had cited a vivid description of the entire episode of crime narrating the minute details which aptly corroborated the prosecution. 9. The entire incident of dacoity continued during the working hours of the farm for a considerable period of time sufficient enough for the aforesaid eye-witnesses to reminisce the incident and to identify as well as recognize them during the Test Identification Parade. 10. It is a cardinal principle of criminal law that ocular testimony, if found credible, consistent and free from material contradictions, is the most reliable form of evidence. In the context of offence under Sections 395/397 of the Indian Penal Code, the testimony of direct eye-witnesses who have encountered the violence and threats of the dacoits and had been first hand witnesses to the commission of dacoity and later on identified the miscreants in a duly conducted Test Identification Parade hold substantial evidentiary value. The absence of recovery of robbed property may, at best, be a factor affecting the completeness or indicate lapses in the process of investigation but will not defeat the reliability of 20 the prosecution evidence provided the identification is sound and legal and the witnesses inspire confidence. In Harbans Kaur vs. State of Haryana (2005) 9 SCC 195 it was observed that “non-recovery of stolen articles is not fatal where eye-witnesses are trustworthy and the incident is otherwise established beyond reasonable doubt.” In Ramesh Vs. State of Karnataka (2009) 15 SCC 35 it was observed that “it is not mandatory that articles stolen in a dacoity must be recovered for conviction. Reliable identification and consistent testimonies can form the sole basis of conviction.” In V. C. Shukla Vs. State (Delhi Administration) AIR 1980 SC 1382 it was observed that “Test Identification Parade is not substantive evidence but is a step in the investigation to strengthen the identification of accused by witnesses in Court.” 11. Wherein the witnesses are found to be natural, consistent and forthright in their narration of the incident of dacoity and have identified the miscreants in a duly supervised Test Identification Parade without suggestion of tutoring or manipulation. The lack of recovery of robbed articles cannot be held fatal to the prosecution case. The crux of the criminal charge lies in the culpable persons’ conduct and participation of the accusation in the offence and not merely in the seizure of looted property. Therefore, no further corroboration is mandatorily required in such circumstances where the ocular evidence of the direct eye-witnesses in whose presence the offence of dacoity had been committed reigns over any other circumstances being impartial, disinterested and independent. 12. In view of the above discussions, the instant criminal appeals being CRA 765 of 2006 and CRA 193 of 2009 are dismissed. Connected applications, if any, also stand dismissed. 21 13. There is no order as to costs. 14. I record my appreciation for the able assistance rendered by the Learned Advocate Mr. Anand Keshari as Amicus Curiae representing the appellant in disposing of this appeal. 15. Trial Court records along with a copy of this judgment be sent down at once to the Learned Trial Court for necessary action. 16. 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.)