IN A CASE OF DAKOOITY, THE IDENTIFICATION OF THE CULPRITS BY THE WITNESSES AND THE RECOVERY OF INCRIMINATING ARTICLES, SUCH AS LOOTED PROPERTY, FROM THE CULPRITS IS SUFFICIENT FOR THE PROSECUTION TO ESTABLISH ITS CASE.

Kanchan Chakraborty, J.

1) Ajoy Kumar Shaw has preferred the appeal no. 224 of 2009 against the judgment and order dated 27.2.2009 passed by the learned Additional District and Sessions Judge, Fast Track Court no. 3, Barasat and Sunil Kumar Das and Gopal Krishna Das have preferred the appeal no. 346 of 2009 challenging the same judgment and order dated 27.2.2009 passed by the learned Additional District & Sessions Judge, Fast Track Court no. 3, Barasat. Since both the appeals are directed against the same judgment and order, they are heard analogously and disposed of by a common judgment below:

2) On 28.2.2005 at about 7.15 hours, Debendra Basak lodged one FIR against some unknown persons in Amdanga Police Station alleging therein that on 28.2.2005 while he along nine(9) other businessmen, after selling handloom sarees in Calcutta, were returning by a 407 covered van bearing no. WB 51 – 3648 via Barrackpore Kalyani Highway road at about 5.10/5.15 minutes, near the Jute and Tech. Private Limited another 407 light green coloured vehicle obstructed there path. Six numbers of young people aged around 25/30 years, boarded off that vehicle, removed the driver of their van took possession of the vehicle and one of them started driving the vehicle. The other miscreants entered into the van, assaulted the businessmen and forcibly snatched away Rs. 84,000/- cash from their possession. They also took away Mobile sets, golden finger rings, golden chain and other important documents from them at the point of gun. They drove the vehicle through the road leading to Rajberia and stopped the vehicle infront of Moricha Primary School. They boarded off the van after tying up the hands of all the businessmen. One Maroon coloured Maruti car was waiting for them. They boarded on said maruti van and gone towards Naihati.

3) On the basis of said FIR, Amdanga Police Station case no. 18 dated 28.2.2005 under Sections 395/397 IPC with Section 25/27 Arms Act was started. In course of investigation, five(5) miscreants could be arrested. They were placed before Test Identification parade. Some of the theft articles were recovered under seizure lists. On conclusion of investigation, the Investigation Officer filed a charge-sheet against four accused persons namely, Sunil Kumar Das, Gopal Krishna Das, Ashok Karmakar and Ajoy Kumar Shaw for prosecuting them under Sections 395/397 of IPC and 25 and 27 of the Arms Act. The case was committed to the Court of learned Sessions Judge and ultimately transferred to the Court of Additional Sessions Judge Fast Track 3rd Court, Barasat for trial and disposal. Learned Trial Court framed charge under Sections 395/397 and 412 of IPC against all the four (4) accused persons. Learned Trial Court, after considering the evidence on record, oral and documentary, recorded conviction of all the four accused persons for committing offence under Sections 397/412 of IPC and sentenced them to suffer R.I. for seven (7) years and to pay a fine of Rs. 5000/-, in default, R.I. for six more months and to pay a fine of Rs. 3000/-, in default, R.I for 3 months of the offence under Section 412 of the IPC.

4) Ajoy Kumar Shaw , the one of the convicts has preferred the appeal no. 224 of 2009 while convicts Sunil Das and Gopal Krishna Das preferred the appeal no. 346 of 2009 challenging the judgment whereby the learned Trial Court convicted them and passed the above mentioned sentence. The appeals have preferred on the following grounds : a) that the learned Trial Court failed to adjudge the prosecution story by applying the test of probability with regard to the commission of alleged offences by the appellants ;

b) that the learned Judge erred in believing the oral testimonies of the witnesses who were sailing on the same boat;

c) that the learned Trial Court failed to appreciate the fact that the Investigation Officer of the case acted illegally by showing the appellants to the witnesses before holding T.I. parade;

d) that the