BANIFAS SAMAD Vs. STATE

JUDGEMENT

(1.) All these appeals arise out of the same judgment in Sessions Trial No. 163/4 of 1986/87 and hence are disposed of by this common judgment. All the appellants and two others namely Himanshu Patra and Janmejaya Rajhans were prosecuted u/ S. 395, IPC read withS. 25-A of the Arms Act and S. 9-B of the Indian Explosive Act and another Siba Sahu was prosecuted u/Ss. 412 and 414, IPC. All the appellants except Suren Kumra (Appellant No. 2 in J. Cr. A.7/89) were convicted under S. 395, IPC, S. 25-A of the Arms Act and S. 9-B of the Indian Explosive Act and sentenced to undergo R.I. for eight years u/ S. 395, IPC and one year each under the other heads of charges with direction for the sentences to run concurrently. Suren Kumra was convicted u/S. 412, IPC and sentenced to undergo R. I. for eight years. While Criminal Appeal No. 298/88 has been preferred by Munna Naik and Barun Tandia, Jail Criminal Appeal No. 328/88 has been preferred by Banifas Samad and Jail Criminal Appeal No. 7/89 has been preferred by Sanatan Besan and Suren Kumra. No appeal has been preferred by Himanshu Patra and Janmejaya Rajhans.

(2.) The prosecution case as per the FIR lodged by P.W. 3 is that on 8/9-11-85 at around 1-30 a.m. she was sleeping in her bedroom along with her husband, her married daughter P. W. 11 was sleeping in another room and her parents-in-law and niece were sleeping on the inside verandah. Her two sons P.Ws. 6 and 8 had been sleeping in the front room of the house after returning from a cinema show. At that time she heard some people talking on the verandah in Hindi and thinking that her sister-in-law might have sent some person from her village she came out to the verandah and in the electric light saw four unknown youngmen to have tied up the hands of her two sons and had made them sit on the ground. Having learnt that they were thieves she went near her sons to protect them but as soon as she reached them, three of the persons caught hold of her and tied her hands threatening her with knife, Bhujali and pistol, made her naked and demanded her to disclose them the place where valuables were kept saying that the villagers had informed them that she had a lot of wealth. Out of fear she gave away her gold necklace to them weighing about 4 Tolas with 14 pendants and one locket and two gold earrings weighing about half Tola fitted with rose colour stones and informed them that there was nothing else in her house. At this time since her husband came near her, those persons also tied up his hands and then three to four other persons armed with Bhujaii and torch came from the staircase side. They dragged her mother-in-law and father-in-law and made them sit on the verandah. At this time P.W. 8 made himself free and suddenly ran away through the front door. She also made herself free and went away outside. Both of them raised hulla for the villagers but though some villagers came yet since the dacoits threatened them to shoot, they went away out of fear. The dacoits went away towards village Bandabahal. After they left, she discovered her father-in-law lying unconscious with bleeding injury on his head. Her husband P.W. 1 had been injured on the right leg due to assault with Bhujali and son P.W. 6 had also suffered injuries. She came to understand from them that after she and P.W. 8 had run away the dacoits had assaulted her husband, father-in-law, mother-in-law and son with Bhujali and knife demanding them to disclose where the gold, silver and money had been kept. They had entered the room where the father-in-law was staying and had ransacked the room. Her daughter was sleeping in a room closing the door from inside and hence nothing was removed from that room. Apart from the gold necklace and earrings which she had given to the dacoits, she stated in the FIR that other things which were taken away by the dacoits were not known to her and after she discovered other articles missing, she would supply a further list of those. The FIR was lodged in her own house as the police reached there getting information about the dacoity. During investigation the appellants were arrested and on submission of chargesheet they were made to stand the trial.

(3.) To bring home the charges against the appellants, the prosecution examined nineteen witnesses. As is submitted by the learned Additional Standing Counsel, the caseagainst the appellants is to be taken as established from the evidence of identification of the appellants in T.I. parade and in court for which the relevant witnesses are P.Ws. 1, 3 and 8, the evidence u/S. 27 of the Evidence Act regarding information given by the appellants leading to discovery of articles for which the relevant witnesses are P. Ws. 17 and 14, and the evidence as to conduct of the appellants in giving discovery of the articles for which the witnesses are P.Ws. 13, 14 and 17. Besides, the identifying witnesses so far as ornaments are concerned are P.Ws. 3 and 11 and so far as recovery of wristwatches, the witness is P.W. 8. It is hence necessary to be seen as to how far the prosecution has been able to establish the charges against the appellants through such evidence.