Calcutta High Court (Appellete Side)
Pradip Biswas & Ors vs The State Of West Bengal on 20 July, 2026
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, 10 th 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
23safely 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
24appropriate 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,
25sharp-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 of2
(2012) 8 SCC 785
26the 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 a5
2023 INSC 239
30wholly 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.)
