STATE Vs. SK USMAN

JUDGEMENT

(1.) NINE accused persons stood trial and were acquitted. The appeal has been filed only against Sk. Ushman and Sk. Zamiruddin. Prosecution case is that at about 3 a.m. on 31 -8 -62 there was a dacoity In the house of Bhikari Jena (P.W. 1). Some of the inmates of the house were tied and assaulted. Ornaments, cloths and other articles were stolen. F.I.R. Ext. 1 was lodged by P.W. 1 at 2 P.M. on the very day. The defence is one of denial.

(2.) THE learned Assistant Sessions Judge found that a dacoity was committed in the house of P.W. 1. This finding is not assailed. There is copious evidence in -support of the finding. The ornaments recovered from the Kutabari (straw heap) of Sk. Ushman were found as belonging to the informant's family. He was however, acquitted on the disbelief of the prosecution story of production of ornaments by him. The production of cloths from the house of Sk. Zamiruddin was also disbelieved.

(3.) SK . Ushman gave recovery of the ornaments from a straw heap in his Bari. In the seizure list (Eat. 8) there is a statement that Sk. Ushman said to have concealed the ornaments there. The seizure witnesses P.Ws. 10 and 18 do not depose to that effect. The statement cannot otherwise also be used against the accused as no question has been put to him in his examination under Section 342, Criminal Procedure Code giving him an opportunity to explain as to whether he made such a statement. The statement regarding concealment in the seizure list cannot be treated as substantive evidence for reasons already given.