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IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE

Present:-

HON’BLE JUSTICE CHAITALI CHATTERJEE DAS.

CRA 375 OF 2006

SK. NAWSAD ALI & ORS.

VS

THE STATE OF WEST BENGAL

With

CRA 16 of 2007

DEEPAK KEJRIWAL

Vs.

STATE OF WEST BENGAL

For the Appellant Nos. 2

and 3 (In CRA 375 of 2006) : Mr. Himanshu De, Sr. Adv.

Ms. Monami Mukherjee . Adv.

For the State : Mr. Saibal Bapuli, A.P.P,

Mr. Partha Pratim Das, Adv.

For the Appellant No. 1 : Mr. Anirban Mitra, Adv.

(High Court Legal Aid Authority)

Last heard on : 05.02.2026

Judgement on : 05.05.2026

Uploaded on : 05.05.2026

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CHAITALI CHATTERJEE DAS :-

1. This is an appeal against an order of conviction under Section 392 of IPC

against 4 Appellants passed by the Learned Additional District and Session

Judge 3

rd

Fast Track Court, Bichar Bhavan Calcutta in S.T. NO.1 of August,

2005 whereby the appellants were sentenced to suffer 5 years and to pay a fine

of Rs. 1000/- in default to suffer Rigorous Imprisonment for an additional

period of 3 months.

Brief fact of the case

2. On treating the statement made by Hasibul Hasan on 20.4.2004 recorded by

S.I D.I the F.I.R was registered as cognizable offence was reported under

section 154 Cr.P.C at Burrabazar Police Station against 3 unknown persons

including the present appellant. The content of the statement was that on

20.4.2004 at about 18.30 hrs. he returned to his office after performing

different jobs entrusted by Sri Shambhu Nath Dutta ,the proprietor of the

Firm M/s. Laxmi Stores ,where the complainant was working as a s ales

person. At about 20.00.hrs he was delivered a navy blue colored side bag

marked ‘Club’ which contained Rs. 6,30,000/- and two invitation card of Md.

Sahabuddin and Raghu Nath Prasad Gupta ,other than Bank statement and

other documents, to deposit the said amount at the house of Sri Dutta .

Accordingly he left his office and was proceeding along Brabourne Road when

he was attacked by 3 unknown persons or more who threatened him in front

of M/S Swatik PINS (P) LTD ,19 Synagauge ,Kolkata -700001 by showing some

hard substances in their hands .They specifically stated to handover the bag

otherwise he will be killed . He became puzzled and perplexed and then the

persons assaulted him and took the money and the document kept inside the

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bag despite the resistance made by him and the straps of the bag remained

with him when they took the bag. The description of the accused persons given

by the complainant was like, one of them medium complexion, 5’10’’ in height

wearing full sleeved check shirt and light colored full pant and was of medium

built. The other miscreant was also of medium complexion approx. 5’5’’ height

well-built having bulging stomach and wearing half sleeved shirt and full

pants. Another miscreant was of medium complexion, with 5’2’’ height wearing

half sleeved shirt and full pant. He too was of medium built and bulging

stomach. After that he shouted for help but the miscreants managed to escape

with the bag itself along with the money and documents .He then went back to

his shop and told the entire incident to Sri. S. Dutta .Thereafter he came to

police station .He further stated that the money were of Rs. 500/-and 100/-

denominations .

3. In course of investigation the complainant identified the present appellant in

T.I. parade and the Navy blue colored side bag was found from Dipak Kejriwal

the Appellant in CRA 16 Of 2007 who was arrested on 23.4.2004 and an

amount of Rs. 5,30,000/- along with some documents were found from his

possession. On 22.4.2004 the other two accused persons were arrested and

accordingly the charge sheet was submitted against them .The police arrested

5 accused persons and shown arrest one accused person who was in custody

in connection with another case. The charge was framed against all the 6

accused persons under Section 395/397 IPC and the content of the charges

were read over and explained to them to which they pleaded not guilty and

claimed to be tried. Hence the trial commenced.

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4. The learned Sessions Court after assessing the evidences adduced by the

prosecution witnesses as well as considering the submissions made before the

court and on the basis of the materials exhibited, passed the order of

conviction against all of them punishable under Section 392 IPC when

acquitted all from the charge under Section 397 IPC. The Learned trial court

also acquitted one accused Anarul from all the charges. Being aggrieved

thereby the present appellants preferred the criminal appeal being CRA

375/2006 and the accused Dipak Kejriwal filed CRA 16 of 2007. Both the

appeals were heard analogously.

Submissions

5. The bone of contention of the argument advanced by the Learned Senior

Advocate representing the present appellants is that the actual number of the

accused persons was highly doubtful as the eye witness qua the complainant

specifically mentioned about 3 to 4 persons when the arrest was made of 6

persons. The amount recovered as alleged is Rs 5,30,000/- when the amount

was carrying Rs 6,30,000/- .The complainant/P.W1 could not establish that

he was an employee of that shop and he was never entrusted to carry money

by P.W 3 to his residence at Salkia on any day. P.W. 3 could not produce any

convincible evidence that he gave the amount to the P.W. 1. The son Rinku

Dutta in whose presence the money was alleged to be handed over was not

examined. The seized articles being MAT Exhibit I and II did not contain any

signature of P.W. 1 and the garments did not contain any label.

It was strenuously argued by the Learned Senior Counsel Mr. De that T.I

Parade was not in conformity with law and no specific role was attributed to

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the accused persons. That apart the T.I Parade was done after 23 days of the

incident which has no legal value. Further argued that it was said by the

suspects before the Learned Magistrate that they were shown to the witnesses

at Burrabazar P.S lock up and hence such T.I Parade has got no evidentiary

value. Furthermore it was mentioned that the complainant identified the

accused by touching their head which can never be accepted being the manner

of identification. Additionally there was delay of 13 days in examining the vital

witness P.W. 4 who was the witness to the arrest of 4 accused persons namely

Sk.Manirul, Sk.Najrul, Zakir Zamadar, Sk.Nawsad from Howrah Railway

Station. The questions put before the accused p ersons while examining g

under Section 313 Cr.P.C were not in conformity with the provision as number

of questions were clubbed together which practice has been deprecated by the

Hon’ble Supreme Court. The Learned Senior Counsel relied upon the following

decisions- Deny Bora versus State of Assam

1

; Pankaj versus State of

Rajasthan

2

; Wakil Singh and Others versus State of Bihar

3

; Tapan

Sarkar and Others versus State of West Bengal

4

; Ramesh Baburao

Davaskar and others versus State of Maharashtra

5

; Bala Krushna

Swain versus State of Orissa

6

; Budhsen and Another versus State of UP

7

;

1

(2014) 14 SCC 42

2

(2016) 16 SCC 192

3

(1981) SCC OnLine SC 482

4

(2018) 18 SCC 772

5

(2007) 13 SCC 501

6

(1971) 3 SCC 192

7

(1970) 2 SCC 128

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Shekh Hasib alias Tabarak versus State of Bihar

8

; Gayadin versus

state of MP

9

; K. Pounammal versus State Repre sented by Inspector of

Police

10

6. The learned Prosecution on the other hand argued that it was a case of

dacoity, started on the basis of the statement of the P.W 1 as F.I.R and in T.I

Parade the P.W 1 identified the accused persons. It is submitted that the word

touching by the head implied he identified the person and it has been wrongly

interpreted by the Learned advocate of the appellant as there remains no scope

of ambiguity .It is further argued that the provision of T.I. Parade is only for

the investigation purpose and for corroboration while identifying in dock before

the court. The accused persons were identified in court by the complainant.

Moreover no prejudice was caused to the victim for delay and cannot be fatal

for the prosecution and P.W. 7.8and 9 corroborated the prosecution case.

There is no column mentioned in the form where it is to be mentioned that the

suspects must be of similar height /colour etc. and even if some lapses are

found that cannot be fatal for the prosecution .The learned Session Court after

considering the entire facts and circumstances passed the order of conviction

hence this appeal is not maintainable and is liable to be dismissed.

Analysis

7. In order to bring home the charges the prosecution has adduced as many as

12 witnesses. P.W. 1 is Sk Hasibul Hassan who claimed to be the salesman of

Laxmi stores and he sells articles and collect cash on behalf of his firm.

8

(1972) 4 SCC 773

9

(2005) 12 SCC 267

10

(2025) SCC On Line SC 1784.

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He deposed that on 20.8.2004 on the ground floor of the shop at about 8 pm

the proprietor gave an amount of Rs. 6,30,000/- in a bag and told him to take

the money to his house .Inside the bag excepting the amount other papers ,

visiting card and one cheque book were there .While he was going towards the

house of his proprietor along with Brabourne street near Swastik Pins Pvt. Ltd

at about 8.15pm 4to 5 persons surrounded him and tried to snatch the bag

and threatened him to hand over the bag to them otherwise they would kill

him. The witness further deposed that as he refused to handover ,one of them

kicked in his belly and snatched the bag and the strap/handle of the bag

remained with him when they took the bag .He shouted Decoit, Decoit and the

local people chased them .He returned to the shop and narrated the Proprietor

Sambhu Nath Dutta and his frie nd Nizamuddin and then he went to

Burrobazar Police Station .By the time he reached the Burrabazar Police

station he found one of the accused already apprehended .Then he and

Sambhunath and Nizamuddin reached at Burrabazar Police station and

informed about the incident. The police prepared a seizure list in respect of the

handle of the said bag which he handed over to police where he put his

signature. He also signed on the lable pasted on the sealed pack of such

handle. Before the learned court the said handle was produced which was

marked with Mat. Exhibit I .The Navy Blue bag in a sealed packet was also

produced which was identified by the P.W 1. The other articles as described

were found from the said bag were marked with MAT exhibit III .He identified 4

accused persons who were present at the time of occurrence and at Alipore

Jail .This witness described how he identified the accused at the correctional

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home ,out of 50 persons of different height and complexion ,standing in a

queue and he identified Deepak, Zakir, Sk.Manirul and Sk. Nausad . This

witness could not produce any identity card of the shop and he denied the

suggestion put to him that he runs separate business in the name and style of

Master Quick Service, a courier service at Uluberia ,in the room of Laxmi

stores. He specifically stated that the amount was given in presence of Rinku

Dutta, the son of the proprietor.

8. P.W. 2 Md. Nasimuddin who had a shop in the name and style of Lakhsmi

Store at 33 Brabourne Road and on 20.4.2004 he was sitting in th e shop of

Lakhsmi Stores at about 8.15 P.M. and at about 8.20 p.m when the employee

of Sambhnath ,Hasibul came and informed Sambhunath in front of him that

4/5 unknown persons kicked in his belly and robbed him of th e bag

containing an amount of R s 6,30,000/-. He further corroborated that he

,Hasibul and Sambhunath went to the Burrobazar police station to report the

incident.On 18.5.20004 again he went with Sambhunath to deposit certain

documents including Income Tax paper.

9. P.W 3 is the Proprietor of Laxmi Store Sambhunath Dutta .He deposed before

the court that on 20.4.20024 at 8p.m he asked his employee Hasibul to take

Rs 6, 30,000/- in a Navy Blue bag with CLUB marked,to his house after 20/25

minutes , Hasibul came back to his shop with the strap of the bag only in his

hand when he and his friend Nasimuddin were gossiping in his shop.

According to this witness the complainant said about 5/6 persons who took

the money. This witness otherwise fully corroborates the prosecution case and

he also submitted his business documents before the police who seized those

documents. It further transpires that the witness further submitted the

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Income Tax returns for the year ending 31.3.2004 .After executing a bond he

took back the amount of Rs 5,30,000/- however he admitted that he had no

document to show that he handed over Hasibul the amount of Rs 6,30,000/-.

10. P.W. 4 Kishanlal Sarkar is a Hawker and sells Combs on the Footpath.

According to him there were 4/5 persons who tried to snatch the bag and

then after snatching they tried to flee away .He could identify only one person

Sk. Anarul. His shop was situated on the footpath in front of 19, Synagauge

Street .From his cross examination it could be gathered that police often filed

petty cases against him since he occupies footpath that he denied to have any

acquaintance with the police office.

11. Therefore from the above nature of evidence there remains no room left to

doubt that the complainant was not entrusted to take an he fty sum of Rs.

6,30,000/- by his employer qua the proprietor to take such money to his

house and in order to carry out the same Hasibul started his journey when

some persons attack him and robbed him of the Navy blue coloured bag which

was marked with CLUB. The defe nce tried their best to establish that the

complaint was not an employee of Laxmi Stores but as the proprietor of said

Store Sambhunath himself admitted that he handed over the money to him

and obviously there is no reason to doubt the existence of such hefty amount

inside the bag. It further gets corroboration when from the possession of Dipak

an amount of Rs 5, 30.000/- were recovered, seized which was returned to the

complainant under a Bond and allowed to be used by the court. So far the

accused Deepak from whose possession the amount was recovered was further

corroborated by the Bus Conductor and the person besides whom he was

sitting in the Bus. Therefore primarily against Deepak sufficient materials

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existed and the Learned Trial Court also passed the or der of conviction

considering the entire evidence of documentary and oral which needs no

interference. The said Accused has expired during pendency of the appeal and

hence this appeal got abated so far Deepak is concerned.

12. The question raised on behalf of the Learned Defence Counsel that the

present accused persons were not arrested with Deepak but all of them were

placed for identification on the same day when accused was not placed with

them. It is his contention that the identification of the accused persons and

the procedure adopted for identification was not in conformity with the law laid

down in this regard and against them no other corroborative evidence are

forthcoming.

13. The evidentiary value of Test Identification Parade has been discussed in the

judgement relied on in the case of Budhsen (supra) by the Learned Defence

counsel. Before the Hon’ble Supreme Court the entire case rests upon the

identification of the appellants which was founded solely on the test

identification parade. In para 7 of the said Judgement it was held that-

“7. Now, facts which establish the identity of an

accused person are relevant under section 9 of the

Indian Evidence Act. As a General rule , the

substantive evidence of a witness is a statement

made in the court .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 evidence in order to carry conviction should

ordinarily clarify as to how and under what

circumstances he came to pick out the particular

accused person and the details of the part which the

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accused played in the crime in question with

reasonable particularity .The purpose of a prior test

identification ,therefore, seems to be 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 proceeding .There may ,however,

be exceptions to this general rule ,when for example

,the court is impressed by a particular witness ,on

whose testimony it can safely rely ,without such or

other corroboration .The identification parades belong

to the investigation stage .They are generally held

during the course of investigation with the primary

object of enabling the witnesses to identify persons

concerned in the offence, who were not previously

known to them. This serves to satisfy the

investigating officer of the bonafides of the

prosecution witnesses and also to furnish evidence to

corroborate their testimony in court .Identification

proceedings in their legal effect amount simply to

this: that certain persons are brought to jail or some

other place and make statements either express or

implied that certain individuals whom they point out

are persons whom they recognize as having been

concerned in the crime .They do not constitute

substantive evidence …….”

14. In this case the Learned Magistrate who held T.I Parade of Anarul deposed as

P.W 6. He said that the suspect was mixed with 11 other persons of same

height, appearance and stature. The witness Kishanlal Sarkar identified by

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holding his gangee in course of T.I Parade. The Magistrate gave his opinion

that the suspect and the witness remained in court room before holding T.I.

Parade and there is every possibility of collusion. The Learned Trial Court

considering the testimony passed the order of Acquittak in favour of Anarul

since the T.I. Parade was vitiated.

P.W. 8 S.K Mukherjee the learned Metropolitan Magistrate held the T.I Parade

of other 5 accused persons when the complainant was the witness. The

Magistrate said did not meet with the suspect before holding T.I. Parade and

did not know the complexion and relig ion of the suspects before such

identification test .He specifically stated that he followed all the required

procedure for holding T.I.P. It is found that he did not mention in his report in

which manner he mixed up the suspects and U.T.Ps.

15. In the decision of Sheikh Hasib alias (Tabarak) (supra) it was held by the

Hon’ble apex court that the object of Test Identification Parade is to

corroborate substantive evidence of witness given in court. It was further

observed that Identification parades are ordinarily held at the instance of the

investigating officer for the purpose of enabling the witness to identify either

the properties which are the subject matter of the investigation or the persons

who are alleged to have been concerned in the offence .Such Test or Parades

belong to the investigation stage and they serve to provide the investigating

authority with materials to assure themselves if the investigation is proceeding

on right lines .So it is desirable that test parade are held at the earliest

possible opportunity .The Hon’ble Supreme court acquitted the appellant since

the test Identification parade was held after a delay of 15 days. In that case

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two Test Identification Parade held on the same date within half an hour of

each other and PW10 was present in both the parades but in the first parade

the appellant was not placed and no reason was assigned for his non -

inclusion.

16. Therefore from the observations as discussed above it is established that the

test identification parade are not the substantive evidence when the statement

of the witness in court is an substantive evidence and the object of the test

identification parade is to facilitate the witness to identify either the properties

involve or the persons concerned against whom th e allegations are levelled

specially in absence of any direct evidence. It is used for the purpose of

corroboration.

In the instant case so far Anarul is concerned he was shown arrested on

5.5.2004 and his T.I. Parade was held on 11.8.2004 but the other accused

persons were arrested on 22.4.2004 ,23.4.2004 and 5.5.2004 and their T.I

parade was held on 15.5.2004 .Therefore the Learned Advocate tried to

impress upon the court as no reason was assigned as to why Sk .Anarul was

not placed in T.I parade along with the others .But fact remains Anarul was

not identified by the complainant and he was shown arrest on 5/5/2004 .The

witness who identified Anarul was not present on the date when the other 5

accused persons were identified .Therefore the facts and circumstances of the

two cases are different and no question to that extent was put to the I.O and

hence question of giving explanation never arose but fact remains there was

delay in holding the test for more than 15 days when the police arrested all the

accused .

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17. The further point raised regarding delay in examination of P.W.4 Kishanlal

Shonkar who was present at the time of arrest of 4 accused persons on

22.4.2004 at the waiting lounge of Howrah Railway Station and his statement

was recorded on 3/5/2004 that is after 13 days delay without any explanation,

In the decision of Balakrishna Swain vs S tate of Orissa (supra) where it

was held that unjustified delay on the part of the I.O. in recording statement of

material eyewitness during investigation of the case will render evidence of

such witness unreliable. In that case the concerned witness was inimically

disposed to the deceased and was an interested witness and he was not

examined till after 10/11 days of the incident.

18. In the case of Gayadin (supra) on careful perusal, it is found that the

evidence adduced by those witnesses were not relied upon and credibility were

questionable because the statement of the said witnesses who claimed to be

the eye witnesses of the gruesome offence were examined long after 20/22

days when no case was made out that they were not available. In the instant

case the I.O. specifically denied that the witness named Kishanlal Shonker in

the arrest Memo and the person present at the T.I. parade of Anarul was the

same person. In his report the Learned Magistrate mentioned about the

possibility of collusion and against such order of acquittal no appeal is

preferred. P.W. 5 is Shamim Akhter who boarded a bus at Babugha t for going

to Cuttck in the afternoon at 4.30pm when police officer arrested a person

sitting beside him and the police officials searched the person and recovered

5,30,000/- from the arrested person name Deepak Kejriwal .So far the seizure

lost and the money which was recovered from him was duly proved before the

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court and hence the prosecution duly proved that on the relevant day Deepak

Kejriwal committed such offence .The point is how far the prosecution has

been able to prove that the preset appellant were with him . The complainant

gave the statement immediately after the incident whereby it was sated that he

was accosted by 3 persons or more who threatened him by showing some hard

substance in their hands. The complainant disclosed about assault by their

persons and later before court said he was kicked in his belly and he have the

description of three persons who were present there but before the court he

gave the number as 4-5 persons .He did not consult any doctor though alleged

about assault by 3 persons .

19. The vivid description given by the complainant in his statement clearly

suggests presence of three persons which has been subsequently developed

into 4to 5 persons. So taking his statement as true that he was assaulted by

three persons certainly raises a suspicion that he did not sustain any injury.

His testimony manifest presence of 4to 5 persons but he was kicked only by

one of them in his belly but failed to substantiate as he did not consult any

doctor. It is settled law that the F.I.R is not an encyclopedia and all the details

of the incident may not find place therein but in the instant case the statement

was given immediately after the incident before the police which shows the

glaring inconsistencies .The P.W. 2 Nasimuddin heard the incident from

Hasibul who told him about 4to 5 persons and he was kicked by one of them

in his belly .Interestingly P.W. 3 Sambhunath Dutta who was also with

Nasimuddin at the same place and heard from Hasibul at the same time

further increased the number of persons as 5to 6 who surrounded Hasibul and

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kicked him and robbed him. The P.W . 11 Ashoke Kumar Singha the officer

who recorded the statement deposed that Hasibul stated before him that he

was assaulted by the accused persons and he send Hasibul to Medical College

and Hospital but such fact was not found in the case record. He also did not

examine any doctor. The appellant were arrested by P.W 12 but he did not

supply the G.D entry copy to the accused person. He did not contact the GRP

office at Howrah Station and the witness signed in the arrest memo was not

examined. He did not held any medical checkup of the accused after arrest.

The learned Magistrate who held the T.I. Parade stated before the court that

the suspects informed him that they were shown to the witness when the

suspects were at Burrabazar police station lock up. In his report the height

and complexions were not mentioned.

20. Therefore clubbing together and the embellishment found ,in absence of any

recovery from either of the Appellant , who were not arrested with the

principle accused Deepak Kejriwal ,since deceased , and placing them with

said Deepak Kejriwal though their arrest w ere prior to the arrest of

Deepak,since deceased raises a cloud of suspicion .No iota of materials are

there to show they were arrested from the Howrah station lounge area ,no G.D

Entry produced with the case record ,and most importantly the statement of

the Magistrate regarding the exposure of the suspect by the witness creates

serious doubts about their presence at the spot . The learned Magistrat e

acquitted Anarul on the ground of defective test Identification but passed the

order of conviction against them without having sufficient materials to

establish the same. In the decision of Manoj Munna vs Sta te of

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Chattisgarh

11

the Hon’ble Supreme Court observed that it’s a settled

proposition that whenever any doubts emanates in the mind of the court, the

benefit shall accrue to the accused and not the prosecution. That apart there

is a delay of sending the F.I.R to the learned Magistrate after 2 days without

having any plausible explanation also creates a doubt since as per the

mandate of section 157 Cr.P.c. within a period of 24hrs the F.I.R to be sent to

the nearest Magistrate .

21. Lastly the charge against all the 6 accused were under 395/397 IPC but the

order of conviction was passed under Section 392 of the Indian Penal Code but

no parameters were discussed to establish that the offence under Section 392

IPC was commenced and therefore it can never be said that the prosecution

was able to prove the case beyond all reasonable doubts.

Conclusion

22. Accordingly this Criminal Appeal being CRA 375 OF 2006 is hereby allowed.

23. The judgement and order of conviction passed by the Learned Trial court is

hereby set aside. All connected application stands disposed of.

24. The appellants be discharged from their respective bail bonds

25. CRA 16 of 2007 is dismissed being abated.

26. No order as to the costs.

27. The department is directed to forward a copy of the order along with the TCR

forthwith to the concerned court for taking appropriate steps.

11

2025 INSC 1466

Page 18 of 18

28. Urgent Photostat certified copies of this order, if applied for, be supplied to

the parties upon compliance of all necessary formalities.

[CHAITALI CHATTERJEE (DAS), J.]