HOSSAIN Vs. STATE

JUDGEMENT

(1.) Mobarak Hossain, the appellant before us, was convicted u/s. 396, Indian Penal Code by a learned Additional Sessions Judge, Jalpaiguri, for committing dacoity with murder in the house of Sudeb Bhawal at Bhotpara-Hatkhola, P. S. Dhupguri, District Jalpaiguri and sentenced to imprisonment for life. The appellant seeks to assail the said order of conviction and sentence in this appeal.

(2.) Briefly stated, the prosecution case is that Sudeb Bhawal deceased used to live with his family in his house at Bhotpara-Hatkhola within P.S. Dhupguri, District Jalpaiguri. On the night between 28th and 29th Oct., 1979 Sudeb and his sons-Subrata (PW 2) and Subir and his sister-in-law's daughter Sabitri were sleeping in the house, Sudeb's wife was then in a hospital in an advanced stage of pregnancy. As Sudeb might be required to go to hospital any time on the night, he asked his elder brother Ram Chandra Bhawal (P.W. 1) to remain in his grocery shop which is near his house. Accordingly, Ram Chandra was sleeping in the shop of Sudeb on that night. At or about 2.00 a.m. Ram Chandra woke up on hearing a cry of Sudeb. He started running towards the house of Sudeb and when he came near it a torch light was flashed on him and in that light he saw 10/12 persons. They chased him and one of them fired at him from a gun which missed the target. Being frightened, he fled away and stood at a certain distance under a cover. Four persons entered into the room of Sudeb and looted cash, ornaments, utensils and other s. Subrata (P. W. 2) recognised the appellant and one Baneswar in the light of a 'Kupi' which was burning in the room. Sudeb was dragged out of the room to the verandah where one of the dacoits fired two shots at him causing serious bleeding injuries. The dacoits then decamped with the booty. Ram Chandra (P. W. 1) and other villagers came to the house of Sudeb and removed Sudeb to Dhupguri Primary Health Centre where he was pronounced to be dead. Next morning Ram Chandra went to Dhupguri P. S. and lodged the First Information Report on the basis of which a case under section 396, Indian Penal Code was started against the appellant and others. P. W. 12 S. I. A. Khan took up investigation and arrested the appellant on 29.10.79. After completion of the investigation, charge sheet was submitted against the appellant and others which, in unusual course, ended in committal of the case to the court of sessions.

(3.) In defence, the appellant pleaded innocence alleging that his house is at a distance of 10 bighas only from the house of the deceased and that he was known to PW 2 Subrata and that be had been falsely implicated.