AKAL ALI AND ORS. Vs. THE STATE

JUDGEMENT

(1.) THIS appeal is directed against the judgment of conviction under Section 396, Indian Penal Code and sentence of imprisonment for life.

(2.) PROSECUTION case is that there was a Homoeopathic practitioner by the name of Rabindra Bhattacharjee at Gumrah village under Katigora Police Station. On 14th July 1966 he went to Silehar and did not return that day. His wife Lila Debi, deceased, two daughters Gita Bhattacharjee (P. W. 1) and Gayatri Bhattacharjee (P. W. 13) and two sons Ramendra alias Rama Bhattacharjee (P. W. 2) and Rathindra were sleeping at night inside their house. At about midnight, they were roused by the sounds of footsteps all round the house. In the meantime, two persons opened the door forcibly and got into the house. A lantern was burning inside the house. The intruders struck the lantern with an oar and the light went off. Lila Debi immediately flashed a torch and in that light accused Faizul Haque and Akal alias Akaddas could be recognised by both Gita and Gayatri. Simultaneously, 20/25 persons entered the house and enquired about Rabi Bhattacharjee. The two girls told that he had gone to Silchar. The intruders then ransacked the whole house and took away the belongings. They also took away the ornaments from the person of the wife and the daughters of Rabi Bhattacharjee. The inmates were assaulted. At that time there was high flood in the locality. One Parameswar Baisnab had taken shelter with his family in the compound of Rabi Bhattacharjee and was staying in the outhouse. Lila Debi called him from inside and asked him to inform the Police. At that time two persons got over the bedstead and assaulted her. One man kicked her down from the bedstead. Sounds of gun fire were also heard. After this, the intruders went out. While going out they called one of them as Atoi. After the miscreants had left the place,"" Gita. Gayatri and Rathindra went to the house of Begu Das (P. W. 6) who lives nearby with a common court yard. Then Arun Paul, Rajendra Deb Roy and Rama Bhattacharjee came to the house of Begu. Arun Paul had bleeding injuries on his leg and head. He told that dacoity had taken place in his house. At that time Gita and Gayatri told about the dacoity in their house and that her mother was assaulted. They also stated that they recognised Akal and Faizul and heard the name of one Atoi. They also told that they would be able to identify some others if seen. The men who collected came to the house of Rabindra Bhattacharjeo and found his wife lying dead. The Officer -incharge of Katigora Police Station, who was staying over the night somewhere near Gumrah, on receipt of the news of the dacoity came early in the morning and recorded the first information report at about 6 A. M. lodged by Ramendra (P. W. 2). He registered the case and sent the injured for medical examination. He also held inquest over the dead body of Lila Debi. Afterwards, investigation was taken over by a C. I. D. Inspector specially deputed for the purpose. Accused Faizul Haque made a confessional statement before the Magistrate and lost identification parades were also held. After investigation, Police submitted charge -sheet against 22 persons under Sections 395 396 397 and 307, Indian Penal Code, and 20 of them were duly committed to the Court of Session under Section 396, Indian Penal Code. Prosecution examined fifteen witnesses including the police officer. The evidence of three doctors examined in the committing Court was tendered under Section 509 Criminal P. C. From the evidence of P. W. 1 Gita, P. W. 2 Ramendra, P. W. 5 Praneswar Baisnab and P. W. 13 Gayatri Debi, it is clearly established that about 20/25 persons had entered the house of Ramendra Bhattacharjee, assaulted the inmates and forcibly took away the belongings and ornaments. The doctors who examined the inmates found injuries on their person and Lila Debi was killed in the course of the dacoity. The doctor has deposed that Lila Debi died of the injuries sustained. In view of this evidence, it has not been seriously disputed before us by Mr. Choudhuri about the commission of dacoity in the house of Ramendra Bhattacharjee. We are clearly satisfied on the evidence on record and agree with the finding of the learned Sessions Judge that dacoity was committed in his house.

(3.) NEXT important question for consideration is whether the appellants have been properly identified to have taken part in the aforesaid dacoity. The eyewitnesses are P. Ws. 1, 2, 5 and 13. P. Ws. 8, 9 and 10 recognised Khalilur Rahman Mekai Hazi by his voice. There were two test identification parades. The learned Sessions Judge disbelieved the evidence of P. W. 2 and we are also not going to rely on that evidence. So far as accused Akal is concerned, his name appears in the first information report and he is identified by P. Ws. 1 and 13. P. W. 1 stated that in the lower Court she had not identified any accused except Faizul and she said that she could not recognise Akal out of fear. P. W. 13 also did not identify any accused in the lower Court, She stated that she did not state in the lower Court that she has recognised the accused persons as she was not asked this question. In view of this evidence we are prepared to give Akal the benefit of reasonable doubt and he is acquitted of the charge.