TAMIJUDDIN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appeal is directed against the judgement and order dated 18th Nov., 1992 passed by the learned Additional Sessions Judge, Islampur in Sessions Trial No. 40/90 [Sessions Case No. 21/90] convicting the appellant for commission of offence punishable under Sec. 396 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for six years and to pay fine of Rs.1000.00, in default, to suffer rigorous imprisonment for one year more.

(2.) The prosecution case as alleged against the appellant is to the effect that on 2nd Sept., 1984 at about 11:30/12 P.M. midnight, the appellant along with others being armed with weapons and having torch light in their hands came to the house of the defacto complainant (PW1) and by show of arms compelled the de-facto complainant and other persons sleeping in the courtyard of the house to remain mum. In the meantime, the miscreants broke the door of the house of the de-facto complainant and his nephew and looted away cattle, utensils and other valuable articles from the house. When the miscreants were fleeing away, the de-facto complainant and others chased them. One of the miscreants fired at them and as a result one Sayad died. The de-facto complainant and others could identify the miscreants by flash of torchlight. It was suspected by the defacto complainant that due to dispute over selection of bride with his nephew Salauddin, the said Salauddin may have committed dacoity in the house. In course of investigation, the appellant was arrested and put up for identification in T.I. parade and was identified by the de-facto complainant (PW1) and PW4, Najimuddin @ Sirua Khawa. In conclusion of investigation, charge-sheet was filed against the appellant under Sec. 396 Penal Code. The case was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, Islampur for trial and disposal. Charge was framed under Sec. 396 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. In course of trial, prosecution examined as many as 14 witnesses. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial Judge by the impugned judgement and order dated 18th Nov., 1992 convicted and sentenced the appellant, as aforesaid.

(3.) Mr. Pawan Kumar Gupta, learned Amicus Curiae, submitted that the evidence on record with regard to identification of the appellant suffers from various infirmities. PW1 deposed that he had identified the appellant as he was a bald person. However, in course of T.I. Parade, no precaution was taken to mix up the appellant with other bald suspects. It is further submitted that there was delay in holding T.I. Parade and the appellant was known to the witnesses and therefore, identification of the appellant loses significance. He accordingly, prayed for acquittal.