MAIZUL SK Vs. STATE

JUDGEMENT

(1.) The appeal arises from convictions under Section 395 IPC and under Sections 395/397 I.P.C. of the two appellants and a sentence of 8 years R.I. with a fine of Rs.500/- each, in default, R.I. for 6 months for the offence under Section 395 IPC and a sentence of 7 years R I under Section 395/397 IPC, both the sentences to run concurrently. The appeal arises out of Sessions Trial No.4 of July 1982 held by the learned Additional Sessions Judge, Birbhum. The two appellants had further been charged under Section 148 IPC the learned trial Judge in his judgment has held that the said charge was redundant and as such both the appellants were found not guilty of the said charge under Section 148 IPC.

(2.) The prosecution case in short is as follows: - The informant, Kanailal Datta (P.W. 10) resides at village Laksmibati, P.S. Rampurhat, in a two storied building which is east facing consisting of two rooms in each floor. The building is mud built. On the eastern side there are verandahs on each floor and the house is bounded in all sides by a mud wall. At about 2-00 a.m. on 30.6.78 about 12/14 persons entered into the inner court yard of the house, after breaking open both the outer and the inner doors leading to the court yard. At that time, PW 1 (son of PW 10), PW 2 and PW 3 were sleeping on the ground floor verandah. P.Ws 2 and 3 are agricultural labourers employed by PW 10. P.Ws. 1, 2 and 3 made futile efforts to prevent the dacoits from entering into the court yard, but they were overpowered and tied up with rope and confined in a place in the ground floor verandah. According to them, the two appellants for some time stood on guard near them with Bhojalis. Two bombs were exploded, the second one being thrown upstairs as a result of which PW 12, the daughter of PW 10 aged about 9/10 years, Khudirani by name, was injured and had to be ultimately taken to Rampurhat Hospital. The dacoits also broke open the staircase door leading to the first floor and went upstairs and assaulted PW 10, who was sleeping on the first floor and demanded articles from him. It is the evidence of PW 10 that the two appellants for sometime stood on guard with Bhojalis near him after he was tied up with rope. The dacoits took away various gold articles/ornaments, utensils, two wrist-watches, clothes, wall clock, some money and grocery articles from the house. Apart from PW 10, P.Ws. 1, 2 and 3 were also beaten up by the dacoits during the dacoity. It is the prosecution case that P.Ws. 1, 2, 3 and 10 recognised the two appellants in the electric light burning in the premises at the time. P.Ws. 1, 2 and 3 recognised the two appellants in the light of a 60 watt bulb which was burning in the court yard and which was after sometime broken by the dacoits, PW 10 recognised the two appellants in the electric light of the verandah on the first floor. After committing the dacoity, the dacoits left with the booty and shortly thereafter, P.Ws. 4, 5, 6, 7, 8, 9 and 11, all being neighbours came to the house of PW 10 and saw the articles there in a scattered condition and also heard about the dacoity from PW 10. P.Ws. 1, 2, 3 and 10 were untied by the neighbours after the dacoits had left. PW 5, one of the neighbours, has specifically deposed that PW 10 told him then and there that he could recognize two persons in the electric light and that subsequently he would be able to identify them. PW 6, who is a resident of a near-by house was asked by his uncle (P. W. 4) to inform the Thana over phone about the dacoity, as soon as they woke up on hearing the Halla and explosion of bomb. Rampurhat P.S. was at a distance of 10 K.M. from the village concerned and on receipt of the message that a dacoity had taken place in village Lakshmibati, a police party comprising of P.Ws 19, 21 and 23 (who was the then Officer-in-Charge) came out to investigate in a jeep. On the way to the village of Lakshmibati, when the jeep reached near the Protappur village, 4/5 persons were noticed proceeding towards Rampurhat along the pucca road. As the police jeep slowed down, these persons began to run through the field but the two appellants were apprehended by the Police party after a chase. Thereafter, the two appellants were taken back to the Police Station in custody in a police vehicle by PW 21 and force. After the jeep had gone back with the appellants to the Police Station, PW 23 with some members of the force went to the village Lakshmibati and on seeing a crowd collected in front of the house of PW 10 went to the house. Then and there, PW 23 recorded the FIR of PW 10 and the same was forwarded to the Police Station. Thereafter, PW 23 took up investigation of the case, prepared the sketch map (Ext.5) sent P.Ws 12, 1, 2, 3 and 10 to hospital for treatment. Thereafter, on the same day, he recorded the statement of the witnesses who have deposed in this case. He seized under a seizure list (Ext. 1/3) a number of articles, including 4 pieces of door leaves, one Khil made of wood, 3 suitcases, one are with a wooden handle, one pillow cover stained with blood, one tin suitcase, one Shaval, some remnants of exploded bombs, one broken Khil, one rope of jute and one old umbrella. In due course, PW 23 Prayed for holding of TI parade which was held by PW 16 on 10.7.78, in which P.Ws 1, 2, 3 and 10 all identified the two appellants, and each of them described before P.W. 16 the parts played by the two appellants. The position of the suspects at the T.I. parade was changed after identification by each witness and according to the evidence of P. W. 16, the same was held precluding the possibility of collusion.

(3.) The prosecution examined 23 witnesses. Defence did not examine any. The defence case both in the cross-examination of witnesses and in their answers under Section 313 Cr. P.C. was that they were shown to the identifying witnesses both at the house of P.W. 10 on the morning of 30.6.78 and also at the police station before the T.I. parade was held. The defence case is one of innocence.