- (1.) This appeal is directed against the order of conviction and sentence under Section 411 of Indian penal Code dated 20.3.1985 passed by the learned Sessions Judge, Hooghly, whereby the appellants were sentenced to suffer R.I. for one year each.
(2.) On 6.5.1981 while wife of Dussashan Jana was sleeping in her room with children, 10 to 12 dacoits entered into the house, tied up Kalipada Karmakar (P.W. 13) who was sleeping on Varandah and asked Archana Jana (P.W. 1), the wife of Dussashan, to open the door. Archana refused to open the door and the dacoits cut the frame of the door by axe and entered into the room. They threatened Archana and demanded cash and valuables etc. from her. When the P.W. 1 Archana said that there was no cash money in the house, the dacoits assaulted her and broken her two teeth. They ransacked the house and looted away house hold articles and left the place. Being attracted by the hue and cry raised by the P.W. 1 Archana, local people assembled there and were informed about the incident. On the next morning, one F.I.R. was lodged with local police station. The case was registered as Polba P.S. case no. 6 dated 6.5.1981. The case was investigated into and ultimately charge-sheet was filed under Sections 395 and 397 of I.P.C. against six accused persons including these two appellants. One of the accused persons died in course of trial. One of the accused was acquitted at the time of framing of charges. Remaining four accused persons including these two appellants were arrayed to face the charges under Section 395/397 and 412 of I.P.C. to which they pleaded not guilty and claimed to be tried. Accordingly, the trial commenced. In all, 23 witnesses were examined on behalf of he prosecution. The report of T.I. Parade, the seizure lists, F.I.R., rough sketch map of Place of occurrence and other documents were admitted into evidence on behalf of the prosecution and marked Ex. No witness was examined on behalf of the defense. The learned Court, upon consideration of the evidence on record found that the out of four accused persons these two appellants committed the offence under Section 411 of I.P.C. Accordingly, the learned Trial Court recorded their conviction and passed the sentence for suffering R.I. for one year. The appellants preferred this appeal challenging the sustainability of the judgement, mainly, on the following grounds : a) that the learned Court failed to appreciate the evidence in its proper and correct perspective; b) that the learned Court failed to take note of the fact that seizure of the alleged stolen articles was not established in accordance with law; c) that the learned Court also failed to take note of the fact that the charge was not properly framed; and d) that the judgement impugned being otherwise bad in law, is not sustainable. Mr. Pratik Bhattacharya, Learned Amicus curiae appointed for the appellants contended that the facts averred in the F.I.R. have not been corroborated by the lodger of the F.I.R. Smt. Archana Jana, the lodger of the F.I.R. has been examined as P.W. 1. She stated in the F.I.R. that at the relevant night she was sleeping inside the room with her children while Kalipada Karmakar was sleeping in the Varandah. She heard some odd sounds from the Varandah and also heard sound of dashing the door of her room. She was scared and did not open the door. She could understand that the door was broken by some persons who entered into the room and assaulted her with lathi. They ransacked the room and demanded money, golden ornaments etc. from her. When she could not hand over the money and golden ornaments, the dacoits assaulted her and kicked on her face. They took away all the house hold articles and left the place. Co-villager assembled on the spot hearing her alarm to whom she narrated the incident.
(3.) In course of her examination, the P.W. 1 Archana stated that on the relevant date and time while she was sleeping inside the room with her children and Kalipada was sleeping out side the room, 12 dacoits entered into the house, tied Kalipada and thereafter dashed the door of her room. First of all, they threatened her and thereafter cut the door open. They demanded cash from her. When she said that there was no cash with her, they assaulted her and as a result, two of her teeth were broken. Thereafter, those dacoits took away her house hold articles, ornaments she had. Thereafter, she raised alarm when the miscreants left. Local people assembled and she narrated the incident to them. In the next morning, she went to police station with Nilu Ray and lodged the F.I.R. She also identified the appellant Jiaruddin Sk. in T.I. Parade. She could not recognized any other dacoits. She also identified the stolen utensils placed before her at the time of her examination which were marked material Ex. 2, Ex. 3, Ex. 4 and Ex. 5. On careful perusal of the cross-examination of P.W. 1 it appears that she reiterated that she was assaulted by the dacoits when they entered into the room by breaking open the door. She denied that any of the persons arrested in connection with the case was shown to her in the police station. It appears that her testimony supporting the case of prosecution remained unsankened and she faced the text of crossexamination confidently. The P.W. 2,3,4,5 and 7 are local people who found the door of room of P.W. 1 broken and that police official arrived there and seized same articles therefrom. The P.W. 8 is a seizure witness in respect of Kansha plate and one torch light from the house of Sambu.;