MD ROSEN Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioners Md. Nasiruddin Ansari and Md. Nasirulla Khan said to be students of the Ranchi University and the petitioner Md. Rosen said to be a business man, all belonging to the State of Bihar, have come up in revision after unsuccessfully appealing to the learned Sessions Judge against the order of conviction passed against their under Sections 307 and 393 read with Section 34 of the Indian Penal Code (for short, the CodeT) and under Section 25(a) of the Arms Act sentencing each of them to undergo rigorous imprisonment for a period of five years under Section 307 read with Section 34, two years under Section 393 read with Section 34 of the Code and one year under Section 25(a) of the Arms Act with a direction that the sentences would run concurrently. As the three revisions arise out of the same appellate judgment and order, the matters have been heard together and will be governed by this order.

(2.) The petitioners, it was alleged, being armed with hand-bombs, revolvers and Bhujalis way laid and attacked Sheonandan Ram (P.W. 5) and Banshi Shaw (P.W. 8), two businessmen of Rairangpur, while they were returning from Joshipur in the car bearing registration No ORM 2830 belonging to and being driven by P. W. 5, after collection of their dues from different traders and were at a down gradient on the Ghat road in the Jungle, on August 9,1981 at about 3 P.M. The. petitioners suddenly emerged and one of them, namely, Nasirulla, exploded a band-bomb which hit the front grill of the car. The petitioner Nasiruddin fired from a revolver which did not work. While the car was still proceeding and was near mile stone No.9, the petitioner Rosen put a big stone on the road to prevent P.Ws. 5 and 8 from proceeding and fired a revolver at P.W. 5 which also did not work. P.Ws. 5 and 8 taking a side turn moved and proceeded to Badampahar where they informed the Officer-in-charge of the Police Station about what had happened, but as the occurrence had taken place within the jurisdiction of the Joshipur Police Station, they proceeded to the Joshipur Police Station where the first information report (Ext. 2) was lodged by P. W. 5 and investigation was taken up by the Officer-in-charge of the Police Station (P. W. 10). In the course of investigation, P. W. 10 seized the car with the broken grill (M.O. VIII) and kept it in the custody of P.W. 5, visited the spot and seized some half-burnt papers and jute threads (M.Os. I and II), examined the witnesses and detected the petitioners at Joshipur at about 4.45 P.M on the same day. On search, a blue coloured bag (M.O. VII) which the petitioner Nasirulla was holding, as alleged, was recovered by P.W. 10 in the presence of the search witness (P.W. 6). Four live cartridges (M.Os. IX to XII), an identity card by the petitioner Nasiruddin (M.O. XVIII), cash of Rs. 103/- (M.O. XVI), two Bhujalis with covers (M.Os. V and VI), a hand-bomb which had been kept inside a small bag (M.O. XVIII), a hand-made revolver (M.a. XIII) with cartridge, another revolver (M.O. IV) with barrel (M.O. XIII) loaded with two live cartridges (M.03. XIV and IV) and a letter written in the Urdu (M.O. XIX) were seized from the petitioners under the seizure list (Ext. 5) and kept inside the bag (M.O. VII). P.W. 10 also seized the wearing clothes (M.Os. XX and XXI) of the petitioner Nasirulla as per Ext. 6, M.Os. XXII and XXIII of the petitioner Nasiruddin as per Ext. 7 and M.O. XXIV and XXV of the petitioner Rosen as per the seizure list Ext; 8. The petitioners were arrested. As the allegation was that Sajan Kumar Agarwalla of Rairangpur had also joined hands with the petitioners for the commission of the crimes, he was arrested on August 10, 1981, but no incriminating article was recovered from his possession. Steps were taken by the Investigating Officer for a test identification parade of the three petitioners for identification by P.Ws. 5 and 8 and for scientific examination of some of the seized articles. On the completion of investigation, a charge-sheet was placed against the three petitioners and the other co-accused Sajan Kumar Agarwalla. The petitioners stood charged under sections 393 and 307 read with section 34 of the Code, section 25(a) of the Arms Act and section 5(3)(b) of the Indian Explosives Act. The cc- accused Sajan Kumar Agarwalla stood charged under sections 307 and 393 read with Section 116 of the Code.

(3.) To bring home the charges to the petitioners and the co-accused person, the prosecution had examined ten witnesses of whom P. Ws. 5 and 8 had identified the petitioners in the court and had ascribed the specific parts played by them at the time of the occurrence and they had earlier identified them at the test identification parade. P.W. 4 had testified about the three petitioners and the co-accused boarding a bus coming from Rairangpur of which he was an occupant and getting down near about the place of occurrence at about 12 to 12.30 P.M., and P.W. 3, the conductor of a bus and P.W. 7, an occupant of the bus of which P. W. 3 was the conductor had been examined to show that the petitioners boarded that bus near about the place of occurrence after committing the crimes when they were sweating and their pants had been stained with mud and one of them was holding a bag and they were anxiously looking at all sides. Suspicion had arisen in the mind of P.W. 7, as deposed to by him and he had informed the conductor to interrogate the petitioners, but, on his own showing, after the petitioners got down at Joshipur, he had taken no steps to inform at the police station or any other person although by that time, he had learnt about the commission of robbery on the way. P.Ws. 2 and 3 had not supported the case of the prosecution and had been put leading questions by it under section 154 of the Evidence Act. P. W. 1, a businessman at Rairangpur, had witnessed the seizures of M.Os. I and II on the spot. P.W. 6 had testified about the seizures of the incriminating articles from the possession of the petitioners by the Investigating Officer at Joshipur to which reference has already been made. P.W. 9 was then the Sub. Divisional Judicial Magistrate at Karanjia who had conducted the test identification parade on August 25, 1981 in which P.Ws. 5 and 8 had identified the petitioners to be the culprits and he had proved his report (Ext. 9). P.W. 10 had investigated into the case.