DHAN PAD CHETRI Vs. STATE OF ASSAM

JUDGEMENT

(1.) This appeal is projected against the judgment and order of conviction passed by the Additional Deputy Commissioner, Karbi Anglong, Diphu against the appellants in Sessions Case No. 20 of 1977 convicting the appellants under sections 395/397, Indian Penal Code and sentencing them to suffer rigorous imprisonment for 4 years with a fine of Rs. 500/ - each, in default, to suffer simple imprisonment for one month each. While the appeal was admitted on 2-11-81 a Rule of enhancement on the sentence was issued by this Court on the ground that as the learned trial Court found both the accused appellants guilty also under section 397, I.P.C. let the sentence as prescribed under the provision of that section be imposed on the appellants. The learned trial Court sentenced both the appellants to 4 years imprisonment instead of 7 years as prescribed under section 397, I.P.C. On issuance of the Rule, this Court further directed to start a separate Criminal Revision Case and accordingly, Criminal Revision No. 343 of 1981 was started to be heard together at the time of hearing of this appeal.

(2.) To get the grip of the case we would like to narrate the prosecution case in brief. In the night between 6-2-76 and 7-2-76, at 2 A.M. about 7 dacoits armed with gun and deadly weapons entered into the dwelling house of Kedar Nath Sonar (since deceased) of Teli Basti under Howraghat Police Station, Disirict Karbi Anglong and assaulted him with sticks and other weapons on several places of the body, tied his hands with turbans behind his body and also assaulted his wife The dacoits broke open the box and looted cash of Rs. 16,000/-, gold and silver ornaments etc. the total value of which would be about Rs. 20,000/and ran away. As a result of injury said Kedar Nath Sonar became unconscious and when the neighbouring people came after the occurrence was over, he regained his consciousness. He was taken to hospital for medical aid. An ejahar was lodged to the Officer-in-Charge of Dokmoka Police Station by said Kedar Nath Sonar to the above effect. It was stated in the ejahar that the informant Kedar Nath Sonar could recognize Shri Bishnu Pd. Chetri, one Kancha son of Bhasole and one seller of Nepali churi (bungle) of Chaijeog, among the dacoits. On receipt of the ejahar, police started investigation, seized certain articles from the house of the informant as per Seizure List Exhibits 1 to 6, Thereafter, the police arrested Sri Bishnu Pd. Chetri, Sunil Chetri, Prafulla Kr. Majumdar and these two appellants and submitted charge sheet against them under sections 395/397, IPC. All the five accused were produced before the learned trial Court but Shri Sunil Chetri and Sri Prafulla Kr. Majumdar were discharged and the charges against the two appellants including Shri Bishnu Pd. Chetri were framed under sections 395/397, I.P.C. by the learned trial Court. While explained the charges the accused pleaded not guilty. During the course of trial the accused Bishnu Pd. Chetri having died, the case proceeded against the two appellants. The prosecution examined as many as 7 witnesses and two Court witnesses were examined in support of the prosecution case. The defence did not adduce any evidence. The learned trial Court, upon consideration of the evidence on record found both the accused appellants guilty under sections 395/397. I.P.C. and convicted them under the aforesaid provision of law and sentenced them as aforesaid. The informant Kedar Nath Sonar who lodged the ejahar and also the victim of the dacoity died about 9 months before the trial started and as such, his evidence could not be taken by the prosecution. Now, this appeal is preferred by the two convicts.

(3.) Admittedly the occurrence took place at dead of night and except the inmates of the house there is no other eye-witness to the occurrence. In such nature of cases one can not expect any independent eye-witness besides the inmates of the house and therefore; the only evidence adduced by the prosecution as eye-witness is the inmate of the house, namely P.W. 4. Smt. Chandravati Sonarini the widow of late Kedar Nath Sonar the informant. The prosecution has also examined other witnesses who happened to appear in the place of occurrence after the commission of the dacoity and also rendered help to Kedar Nath Sonar, the informant to have his medical aid.