MD QUDUS Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 2 -5 -1989 passed in Sessions Case No. 6/89 by 3rd Additional Sessions Judge, Saharsa convicting and sentencing both the appellants to undergo R.I. for a period of 10 years each under Section 395 of I.P.C.

(2.) THE prosecution case in short is that in the night on 13 -7 -88 at about 12.00 O'Clock the informant Jagrup Safi (P.W. 2) was sleeping in his house when 8 -10 miscreants entered in his house and one of them after flashing a torch on his face awoke him and asked whether he (informant) identified bun and on giving negative reply by the informant that miscreant asked him to remain quiet. Two miscreants entered the house and brought out a box on which the daughter -in -law of informant raised alarm and when the informant tried to get up the miscreant, who was standing on his side gave a blow to him by a stick. The daughter of informant, was also assaulted by the miscreants by means of stick and when neighbours after hearing liulla' came running to the house of the informant the miscreants fled away taking away two boxes containing clothes and ornaments worth Rs. 250/ -. The fardbeyan(Ext. 1) of informant was recorded by I.O. On 14 -7 -88 at 11.00 a.m. at his village -Fulkaha. On the basis of fardbeyan, a formal F.I.R. (Ext. 2) under Section 395 of I.P.C. was drawn against unknown. After investigation charge -sheet against both the appellants, who during the course of investigation were identified by informant and other witnesses in T.I. Parade, was submitted under Section 395 of I.P.C. After cognizance the case was committed to the Court, of Session and the appellants were put on trial after framing of charge under Section 395 of I.P.C. against them and after trial they were found guilty and have been convicted and sentenced as indicated above.

(3.) P .W. 2, informant, has said that on the date of occurrence, a dacoity was committed in his house by 9 -10 dacoits and articles such as clothes, ornaments, etc. were taken away in the dacoity and his daughter was assaulted by the dacoits. He has stated that he had identified both the appellants in T.I. Parade but in his cross -examination, he has stated that the appellants were not among the dacoits and the appellants had assembled with other villagers after the dacoity and he identified them in T.I. Parade thinking that the appellants were the witnesses. Similarly, P.W. 1 and P.W. 3 have stated that they had identified the appellants in T.I. Parade but in their cross -examination, they both have sated that appellants were known by name as well as by face to them from before occurrence and the appellants were not among the dacoits. P.W. 1 has stated that on 'hulla' raised on the date of occurrence a number of persons had assembled at the house of informant in which these two appellants were also there and at that time these appellants had disclosed that they had come to a contractor as his guests and he identified both the appellants in T.I. Parade thinking that they were witnesses. P.W. 3 has also stated that he saw a mob which had assembled at the house of informant after dacoity and the appellants were known to him by face as well as by name before the occurrence.