MD. ABDUL @ BAPI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE challenge in this appeal is the Judgment and the order of conviction dated 19.04.2013 and 20.04.2013 passed by the learned Sessions Judge, Howrah in Sessions Trial No. 03/2010 thereby convicting the appellant Md. Abdul @ Bapi committing offence under Sections 395 and 397 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment of seven years for both the offences and to pay a fine of Rs. 5,000/ -, in default, to suffer simple imprisonment for six months. Both the sentences would run concurrently. On 11.08.2009, at about 4.30 hours, one F.I.R. was lodged by Sisir Samanta with Jagatballavpur Police Station stating therein that on 11.08.2009 at about 2.15 p.m., four young men aged about 30 years approximately, entered inside Polgustia Anchal Samabay Krishi Unnayan Samity Limited. At that time Dilip Hait, the bank accountant, came out for taking tiffin and one of the four young men put a gun on his head and pushed him inside the bank forcefully. Dilip Hait tried to make himself free and there was a scuffling. The man fired twice and one bullet blasted and hit the bank counter but the other one did not blast. The four miscreants had bitten up five employees of the bank and gathered those employees in one corner and assaulted the Manager, Sisir Samanta with the butt of the revolver. One of them brandished one revolver and entered into the cash counter and took away of the transaction money to the tune of Rs. 2,53,568.70/ - which was kept in an attachy, they also snatched five mobile phones from five employees. Two miscreants besides those four miscreants, were found standing at the gate of the bank and there were three motor cycles on the road where on two/three miscreants were sitting. The four miscreants who entered into the bank boarded on the motor cycles and went towards Panpur after committing dacoity. The entire episode concluded within five minutes.

(2.) ON the basis of the F.I.R. above, Jagatballavpur Police Station Case No. 143 of 2009 dated 11.08.2009 was started. In Course of investigation, four accused persons could be apprehended but others could not be. Some stolen cash and mobile phones were recovered and seized. Fire arms and ammunition as well as motor cycles were also recovered and seized. The persons arrested were placed in T.I. Parade for identification by the witnesses. On conclusion of investigation charge sheet was submitted against four accused persons including the appellant with a prayer to file supplementary charge sheet in case of arrest of any other miscreants. The appellant and three others were charged under Sections 395 and 397 of Indian Penal Code while Mannan Ali Mallick, Kamal Ahmed and Barun Majhi were charged for committing offence under Section 412 of Indian Penal Code read with Section 25(1) -B (a) and Section 27(1) of the Arms Act.

(3.) MR . Asraf Ali, learned Counsel for the appellant contended that the Trial Judge made a mistake by framing charge under Sections 395 and 397 of Indian Penal Code instead of 392 of the Indian Penal Code. He had taken this Court to the F.I.R. which has been marked Exhibit -1 and contended that the lodger of the F.I.R. made it very clear in the F.I.R. that only four persons entered into the bank premises and done the operation. Since the number of miscreants was less than five, charge ought to have been filed under Section 392 instead of 395 and 397 of Indian Penal Code.