1 IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Ananya Bandyopadhyay C.R.A. 210 of 1992 Sk. Sher Ali -Vs- The State of West Bengal For the Appellant : Mr. Sudeshna Das For the State : Ms. Trina Mitra Heard on : 08.02.2024, 24.04.2024, 07.10.2024 Judgment on : 13.05.2025 Ananya Bandyopadhyay, J.:- 1. This appeal is preferred against the order of conviction dated 06.05.1992 passed by the Learned Additional Sessions Judge, Tamluk in Sessions Trial Case No.09/91 convicting the appellant under Section 392 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 3 years. 2. The prosecution case precisely stated that on 18.02.1980 at about 12:00 a.m., the mother of the complainant while sleeping in a room awoke on hearing a sound and on opening the door in order to ascertain the cause of such sound, one miscreant entered and tied her hands. Thereafter, three other miscreants also entered. After threatening the inmates of the house stole ornaments, cash, utensils etc. The complainant and his cousin brother 2 cried for help. The local villagers hearing the clamour proceeded to their house and the miscreants i.e., dacoits retreated. It was also alleged that the mother of the complainant recognized one of the dacoits as being the appellant himself. Two other miscreants viz. Sk. Amu and Sk. Luthfer were apprehended by the villagers while they were escaping. 3. Based on the aforesaid complaint, Mahisadal P.S. Case No.8(11)/80 under Section 394 of the Indian Penal Code was initiated. 4. Charges were framed against the present appellant and another accused person to which they pleaded not guilty and claimed to be tried. 5. In order to prove its case the prosecution examined as many as 13 witnesses and exhibited certain documents. 6. Learned Advocate for the appellant submitted that the appellant was falsely implicated in the instant case. The mother of complainant i.e. PW-6 falsely stated to have recognized the appellant at the time of commission of dacoity relying on the statement of the co-accused person. The Investigating Officer of the case had not been examined. The appellant was declined of an opportunity to cross-examine the Investigating Officer on the fact of the case and contradictions in the evidence of the witnesses. The material collected in evidence does not relate to constitute an offence under Section 392 of the Indian Penal Code. The first information report was lodged several hours after the occurrence indicating concoction and false implication. The alleged incident took place at Kanchi 7 miles away from Kanchanpur where the appellant was alleged to have lived with father-in-law. It was impossible for an aged woman to recognize a person in the light of “hurricane” “lantern”, alighted in her room in the night. The alamats produced in Court allegedly 3 seized from the spot did not bear any label or mark to authenticate the seizure. All the witnesses appeared to be interested witnesses. 7. Learned Advocate representing the State submitted the prosecution to have been successful in establishing its case. 8. A circumspection of the evidence of the prosecution witnesses revealed as follows:- i. PW-1 recounted to have raised an alarm of the presence of dacoits which prompted the neighbourhood to blow conch-shell etc. who joined to alert others of the incident in unison. There was bursting of bomb by the miscreants which was heard by PW-1 and when the noise subsided he came out of his room to find his elder brother, his wife, daughter and son along with his mother assembled in trepidation. The articles of their house were scattered all over. On query, his mother narrated the incident whereby she heard a sound which awakened her, prompting her to open the door and instantly one person entered into her room, held her and tied both her hands. Thereafter, another person at the point of a dagger asked her to give away all the articles she had. Subsequently 3 other persons entered the room lit by a hurricane out of whom she could recognize the present appellant namely Sk. Sher Ali. The miscreants had taken away “two pairs of golden ear ring, three pieces of golden necklace and two golden ring, one wrist watch of the brand Sonata, either pieces of plate made of bell 6 pieces of glass made of bell, 12 pieces of bati made of brass, two pieces of pitcher made of brass and cash Rs.1500/- (Fifteen hundred)”. 4 ii. PW-1, in his cross-examination, stated to have known the present appellant being a “domesticated son-in-law” in their vicinity denied of any dispute between the parties. He identified the seized the hurricane marked as Exhibit-3, the suitcase marked as MAT Exhibit- 2. iii. PW-2 reiterated the contents of the evidence adduced by PW-1 in its essence being the brother of PW-1. He stated to have been present behind his mother when the four miscreants entered their room. Though he could not recognize any of them. The perpetrators had isolated him and his mother in separate rooms on the ground floor. PW-2 narrated and described the manner in which the offence was committed and the articles taken away by the wrongdoers. He deposed to have been examined by the Investigating Officer and the mob congregated beside national highway for about 10-16 minutes on that night. iv. PW-3 in addition to the evidence of PW-1 and 2 deposed two miscreants to have been caught red handed by the assembly of people being Anowar and the present appellant Sher Ali. v. PW-4 a resident of the house stated to have heard certain noise and the cry of his mother, however remained silent in the room out of apprehension. He was subsequently overpowered by the miscreants forcefully entering into his room who thereafter tied his hands with a “winter cloth”. PW-4 thereafter revealed the whereabouts of the articles in the room to the dacoits. He further submitted that the miscreants did not forcibly harm his wife who was present along with 5 him however, the miscreants after breaking open the tin box took away Rs.1500/- in cash and two golden necklace, one pair of golden ear rings, one golden ring, 3 guchhas golden churis (bracelets), one wrist watch of the brand HMT and utensils including 8 plates, 12 bati made of bell 8 pitcher made of brass. vi. PW-5 narrated the incident of dacoity precisely conforming to the evidence of PW-1, 2, 3 and 4, confirming to have recognized the present appellant to be one of the offenders conceding to the fact of several described articles being grabbed by them. vii. PW-6 too deposed to have recognized the present appellant who used to act as a day labourer in their house in the past. viii. PW-7 being one of the neighbours who assembled on the highway deposed to have witnesses two of the miscreants apprehended who disclosed their names to be Luthfar and Anwar respectively. ix. PW-8 was one of the members in the crowd who gathered on the national highway on the relevant night. x. PW-9 was declared hostile by the prosecution. xi. PW-10 deposed to have heard a commotion which awakened him propelling him to proceed towards the high road and witnessed two of the miscreants to have been apprehended. PW-5 had narrated the incident to PW-10 revealing to have identified the present appellant to be one of the wrongdoers. xii. PW-11 and PW-12 being the inmates of the house, wherein the offence was committed, narrated the incident in consonance with the 6 evidence adduced by the other prosecution witnesses being PW-1, 2, 3, 4 and 5. xiii. PW-13 had been declared hostile by the prosecution. 9. Section 392 of the Indian Penal Code stated as follows:- “392. Punishment for robbery.— Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.” 10. Setting aside the conviction under Section 395 of the Indian Penal Code, 1860, the Hon’ble Supreme Court held the following inOm Prakash v. State of Rajasthan1:- “7. It was lastly argued by the learned counsel that even after believing their evidence the courts below could not have convicted the appellants under Section 395 IPC as the charge of dacoity was against five named persons and out of them two were acquitted by the trial court. Neither the charge nor the finding recorded by the trial court was that accused Om Prakash, Munna, Amarjit Singh and two other unknown persons had committed dacoity. Specifically, the five named accused were alleged to have committed the offence. Two accused having been acquitted it ought to have been appreciated that only the remaining three accused had committed the said offence. Therefore, it was not proper to convict the remaining three accused under Section 395 IPC. Their conviction will have to be altered to one under Section 392 IPC.” 11. The prosecution witnesses viz. PW-1, PW-2, PW-3, PW-4 and PW-5 unanimously stated the incident of miscreants entering into their house 11998 SCC (Cri) 696 7 forcefully overpowering them through wrongful restraint and coerced them in dishonestly parting with the articles of gold ornaments, watch, utensils etc. 12. The Learned Trial Court convicted the present appellant under Section 392 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for 3 years. 13. In order to constitute an offence of robbery under Section 390 of the IPC, the theft, alleged to have been committed, to convert the same into robbery must be coupled with the offender to voluntarily cause or attempt to cause death, hurt, wrongful restraint or fear of any of these of any persons. In such circumstances, an offence of theft can give rise to an offence of robbery. In the instant case apart from, corroborative ocular evidence, the prosecution failed to prove the element of fear to have been instilled in the de facto complainant and her family members in an attempt to cause death, hurt or wrongful restraint. 14. It was alleged that the hands of PW-4, PW-5 and PW-7 were tied. Nonetheless, the Investigating Agency did not recover the object with which the hands of prosecution witnesses as aforesaid were tied. However, the seized articles viz. two broken trunks, one broken suit case, two hurricanes in workable condition and a kerosene lamp were seized under seizure-list marked as Exhibit 1/1 from the room occupied in the house of the de facto complainant. The Investigating Agency did not recover any of the articles viz. the gold ornaments, watch, cash etc. from the accused persons as well as the present appellant. 8 15. The other two perpetrators who had been intercepted by the mob on the highway had been acquitted of the charge under Section 394 of the IPC. 16. The prosecution witnesses referred to burst of bombs. However, remnants of the bombs or any evidence of authenticate or corroborate such action was failed to be proved by the prosecution. 17. The defence could not establish an element of animosity or enmity between the parties to substantiate false implication of the present appellant. Lapses on the part of the investigation would not necessarily frustrate the prosecution case. However, the evidence of the witnesses shall afford to be reliable. In the instant case, though the articles of theft were not recovered by the police, however, the seized articles relatively inferred to the incident of offence to incriminate the present appellant who had been identified by PW-5 as well as PW-4. 18. Learned Advocate presenting the appellant stressed on the point of non- examination of the Investigating Officer rendering the entire prosecution case to be fabricated and concocted. The conviction of an offender can be based solely on ocular (eye witness) evidence even without the examination of the Investigating Officer provided the testimony of the eye witnesses be trustworthy, cogent and consistent. The entire episode of the offence to have been committed had been discreetly and methodically described by the prosecution witnesses being the inmates of the house wherein the offence was committed with corroboration without unnecessary embellishment. Since there was no cross-examination to challenge or controvert the evidence of the prosecution witnesses to prove acrimony and malicious intent to 9 inculpate the present appellant, the ocular evidence can be considered and rendered to be sacrosanct. 19. In such circumstances the non-examination of the Investigating Officer shall not be fatal to the prosecution case if the eye witness’s account is credible and inspires confidence. A conviction can be sustained even without the deposition of the Investigating Officer. Such a proposition had been observed by the Hon’ble Supreme Court in Yanob Sheikh vs. State of West Bengal (2013) 6 SCC 428, Bahadur Naik vs. State of Bihar (2000) 9 SCC 153 wherein it had been, inter alia, observed : “merely because the I.O. was not examined, the otherwise reliable ocular testimony of witnesses cannot be discarded.” 20. In State of UP vs. Harichand (2009) 13 SCC 542 wherein the Hon’ble Supreme Court had observed: “If the witnesses to the occurrence are credible and trustworthy then non- examination of I.O. or otherwise witness becomes immaterial”. 21. In State of Karnataka vs. M.V. Manjunathegouda (2003) 2 SCC 188 it was held that: “Non-examination of I.O. is only a procedural lapse and does not go to the root of the matter.” 22. In the facts and circumstances of the case as discussed above the lapses on the part of the Investigating Agency in presence of credible and trustworthy evidence of the eye witnesses themselves being the victim of the circumstances, the offence to have been committed in their presence as aforesaid cannot shake the foundation of the prosecution case. 10 23. The conviction under Section 392 of the IPC as pronounced by the Learned Trial Court is upheld. However, since the appeal has been filed in the year 1992 considerable period has lapsed in the meantime and accordingly the sentence to suffer imprisonment for 3 years is modified to the extent of imprisonment as already undergone by the appellant. 24. In view of the above discussions, the sentence is modified to the extent of imprisonment undergone by the appellant in custody. 25. Accordingly, the instant criminal appeal being CRA 210 of 1992 stands dismissed. 26. There is no order as to costs. 27. The Trial Court records along with a copy of this judgment be sent down at once to the Learned Trial Court for necessary action. 28. 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.)