JUMMAN ALI MONDAL Vs. STATE OF W B

JUDGEMENT

(1.) For committing dacoity with murder Jumman Au Mondal, the appellant before us, was convicted by a learned Additional Sessions Judge, 24-Parganas under section 396, Indian Penal Code and sentenced to Imprisonment for life and a fine of Rs. 2,000.00 in default, rigorous imprisonment for a further period of 2 years. The appellant seeks to assail the said order of conviction and sentence in this appeal.

(2.) The prosecution case in short was that on 19/1/1980 between 7.00 P.M. and 7.30 P.M., 7/8 persons armed with gun, lathi, tangi etc. raided the house of Mollah Tasmatulla (the deceased) at village Rajapur, P.S. Hasnabad, District 24-Parganas fired at him and otherwise severely injured him causing his death almost instantaneously, looted cash, gold ornaments and one D B.B.I. gun bearing No. 102711 and decamped with the booty, S.I. Gouranga Mitra (P.W. 30), the then officer- in-charge Hasnabad P.S, on receipt of a wireless message from Basirhat P 5. that a dacoity had been committed at village Murarisa proceeded towards that village with force at 7.35 P M. He received information at Murarisa at 7.50 P.M. that a dacoity with murder had been committed in the house of Mollah Tasmatulla at village Rajapur. He reached the house of the deceased at 8.00 P.M. and saw the dead body of Mollah Tasmatulla, lying in a pool of blood in a room on the ground floor. He took up investigation on the basis of the information lodged by Sahara Banu (P.W 24), wife of the deceased. After completion of investigation, police submitted charge-sheet against the appellant and another and in usual course, the case was committed to the Court of Session. In defence, the appellant pleaded innocence alleging that the deceased who was an important leader of the Congress (I) and an M.LA. was murdered by his political rivals and that the appellant was falsely implicated In order to screen the real offenders belonging to the ruling party.

(3.) The charge as framed suffers from a serious infirmity. The charge under section 396, Indian Penal Code was framed against two persons only the appellant and one Abdul Jalil Sk. Though 7/8 persons were alleged to have participated in the dacoity the charge as framed does not refer to any other person besides the two accused persons to have been concerned with the occurrence. The conviction of the appellant under section 396, Indian Penal Code is, therefore, illegal and unsustainable. This view is supported by the decision of the Supreme Court in Ram Sankar Singh and others v. State of Uttar Pradesh reported in that case, 6 persons were placed on trial under the charge that they had committed dacoity though 14/16 persons were said to have participated in the dacoity. The charge like the present one did not refer to any other person besides the six accused to have been concerned with the occurrence. The Sessions Judge convicted all the six under section 395, Indian Penal Code. On appeal, the High Court acquitted three of them and upheld the conviction of the remaining three under section 395, Indian Penal Code. The Supreme Court held that the conviction of the three remaining accused persons under section 395. Indian Penal Code on the charge as framed was improper. The three remaining accused persons could be convicted of the lesser offence of robbery under section 392 Indian Penal Code if there was evidence to show that they had committed act of theft and used violence while committing the theft. In such a situation their individual acts in connection with the alleged occurrence had to be considered. The evidence led on behalf of the prosecution has not sought to bring home to each individual accused the part played by him. The Supreme Court was of opinion that the circumstances of the case did not justify ordering a retrial on an amended charge. The Supreme Court observed that if the evidence against the appellants were above serious criticism, and that was by no means the case as had already been indicated there would have been no hesitation in ordering a retrial but having regard to the circumstances of the case, the Supreme Court did not think that such a course should be taken in the interest of justice. The appeal was accordingly allowed and the conviction was set aside.