BADAL SAMSER ALI Vs. STATE

JUDGEMENT

(1.) BADAL , appellant and Chand Mea, his co -accused were committed for trial to the Court of Sessions Judge, U.A. Dts., under Section 395, I.P.C. Chand Mea was unanimously found guilty under Section 395 by the Jury. He was convicted for that offence and sentenced to R.I. for 3 years. He has not appealed. The Jury unanimously found Badal guilty also under Section 412, I.P.C. He was convicted and sentenced to R.I. for 3 years. He has appealed.

(2.) THE case for the appellant as put before us is that mis -directions and non -directions bearing on the essential ingredients of the offence (Section 412) contained in the charge to the Jury have deprived the accused of the substance of a fair trial and the protection of law though it is not contended that the evidence did not disclose the case of a dacoity or that property was not stolen from the shop of the complainant Onkarmal. On the night following the 27th December, 1949 the shop house of Onkarmal Sarmah was the scene of a dacoity, about the commission of which there is no dispute at this stage. Onkarmal lived in the shop house with his wife, two small children and his servant. The shop house was broken open. 3 or 4 persons first entered the shop with 'doas' in their hands. Onkarmal and his wife were asked to hand over the keys of their boxes and to disclose where their valuables were. It was further alleged that no less than 10 or 12 persons in all entered the shop house and remained inside for 2 hours and succeeded in removing a considerable quantity of valuable articles including ornaments, cash and clothing.

(3.) THE only prosecution witnesses who are said to have identified the property recovered from the shop house of Badal are Onkarmal P.W. 1 and his wife. The important witness is Onkarmall himself. His1 wife hag identified only a piece of a saree border. According to Onkarmall's statements in the Committing Magistrate's Court (with the relevant part of which he was confronted at the trial and which was tendered in evidence by defence under Section 288, Cr.P.C.) he accompanied the Police first to Samuliguri 'hat' in search of the stolen property. The house of Chand Mea was then searched and after that he was taken to Badal's house which was also searched in his presence.