HABAL SHAIKH Vs. STATE

JUDGEMENT

(1.) The two appellants in this appeal were convicted u/S.396 of the Indian Penal Code as well as u/S.9(b)(ii) of the Indian Explosives Act. Each of the accused was sentenced to suffer rigorous imprisonment for life for the offence punishable u/S.396 of the Indian Penal Code, but no separate sentence was passed for offence punishable u/S. 9(b)(ii) of the Indian Explosives Act. This appeal is directed against the said order of conviction and sentence of the two appellants Habal Shaikh and Samsul Shaikh.

(2.) Shortly stated, the prosecution case is that in the night of 26/07/1984, the deceased Surapati Ghosh and his other family members, namely, P.W. 1 his widow Puspa Bala, P.W. 2 daughter Chinta Rani, P.W.4 son Aloke Ghosh and their labourer Dasarath Rajbanshi after taking their night meals had been to the first floor of the house of Surapati Ghosh for taking sleep at about 11.00 p.m. Thereafter Puspa Bala and Chinta Rani went to the eastern side room of the first floor for their sleep while others were on the adjecent verandah of that room on different beds. At that time P.W.4 Aloke Ghosh was reading a book by the light of lantern (Mat. Ext. 1) and others were lying on their beds without any sleep. At about midnight they heard some sounds of footsteps and throwing of something from outside in the courtyard and hearing such sounds they became alert. It was noticed by them that several persons armed with weapons and bombs had already entered inside the courtyard and they began to hurl bombs. On seeing that Surapati with his son P.W. 4 Aloke Ghosh each took a hasua or a ramdaw and stood just on the entrance space of the verandah so that none of the miscreants could make their entry on the first floor. Those persons were found to be 25 in number and they were focussing torches and looted away the valuable including cash and utensile etc. from the ground floor rooms. Just after that they tried to make their entry to the first floor and for that they charged bombs aiming at Surapati and his son, but unfortunately Surapati received bomb injuries on the left side of his parietal bone and damaging the brain matter and fell down on the ground. On seeing such pathetic condition of his father, Aloke sat down by his side and became nervous. Any how he managed to escape by scaling down the wall and alerted the villagers and in the meantime the dacoits made their entry in the first floor and after assault to his mother and sister they snatched away their ornaments. Aloke also received injuries of bomb and in the meantime he came back with the villagers when the dacoits left their house with the booty. After coming back he found the condition of his house and father and with the help of the villagers his father was at first removed to Rajgram Primary Health Centre wherefrom he was transferred to Rampurhat Hospital and succumbed to his injuries at about dawn. On their way to hospital, they made request to the Station Master of Rajgram Railway Station to inform over phone or otherwise to Murarai Police Station about the alleged incident in the house of Surapati Ghosh. Station Master of that Railway Station immediately over phone requested P.W. 16, Md. Samswr Khan, Assistant Station Master of Murarai Railway Station to inform the matter to Murarai Police Station. He immediately after receiving such message at about 2.00 a.m. from Shri A. Y. Deb of Raigram Railway Station sent P.W. 17 a porter of that Station Ramprasad Mahara with written document (Ext. 6) to Murarai Police Station on the basis of which P.W.12, S.1. Ashoke Kumar Ghosh recorded a G.E. being No. 962 dated 27/07/1984 (Ext. 3) and with available force being accompanied by other Police officers immediately reached at the house of Surapati Ghosh. There he obtained a statement of P.W. 1 Puspa Bala and forwarded the same to the Police Station through his subordinate, A.S.I. Shyamal Chatterjee with an endorsement to start a specific P. S. Case and directed S.I.D.N. Hazra to investigate the case. The trial was held and the appellants were convicted as aforesaid.

(3.) The contention of the learned counsel for the appellants is that the entire prosecution case at the trial based on the identification by P.W. 4. There is no other- evidence. Accordingly, having regard to the nature of evidence, it was not be safe to convict them on the sole testimony of P.W. 4.