MD.MUMTAZ KHAN,J. - (1.) The subject matter of challenge in these appeals is the judgment, order of conviction and sentence dated May 22, 2005 and May 21, 2005 respectively passed by the Additional District and Sessions Judge, Fast Track, 1st Court, Diamond Harbour, District South 24 Parganas in S.T. NO. 20(9) of 2003 arising out of S.C. No. 44(8) of 2003. By virtue of the impugned judgment appellants Rabiul Molla and Hafijul Gazi @ Molla (appellants in CRA 439 of 2005) were found guilty of the offence punishable under Section 395 Indian Penal Code (hereinafter referred to as IPC) along with others and in addition to that appellant Hafijul Gazi @ Molla was also found guilty of the offence punishable under Section 412 IPC along with others while appellant Rabiul Molla and two others were acquitted from the charge under Section 412 IPC. Appellant Moloy Kumar Biswas (appellant in CRA 438 of 2005) was also found guilty of the offence punishable under Section 412 IPC. Accordingly appellant Rabiul Molla (appellant in CRA NO. 439 of 2005) along with others were sentenced to suffer rigorous imprisonment for 7 years each and also to pay a fine of Rs. 2,000/ - each in default to suffer rigorous imprisonment for 4 months each for the offence punishable under Section 395 IPC only and no separate sentence was imposed for the offence punishable under Section 412 IPC while appellant Moloy Kumar Biswas was sentenced to suffer rigorous imprisonment for 10 years and also to pay fine of Rs. 5,000/ - in default to suffer rigorous imprisonment for 10 months for the offence punishable under Section 412 IPC with a direction for set off under section 428 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C) with a further direction that half of the fine amount, if realised, be paid to the victims through the complainant as compensation.
(2.) The backdrop of the appeals is discussed below in a nutshell: - On May 5, 2003 PW1 lodged a written complaint before the officer - in -charge, Raidighi P.S. stating that on May 4, 2003 around 11.00 p.m. after dinner his father, youngest brother and his wife went to sleep in the drawing room to the eastern part of his house, his mother in the groundfloor while he along with his wife and children went to their bedroom on the first floor to sleep and closed the door. Around 2.00 a.m. hearing a loud knock on the adjacent southern side of the door they woke up and thereafter on looking through the open window saw that few persons were keeping watch on the road and giving various threats. On realising that his house had been attacked by dacoits, he started shouting. P.W.2, a neighbour, and his sons also started shouting but in the meantime dacoits had broken open the door with axe and entered the room and beat up his mother and asked her where her elder son was. Those dacoits then struck the closed door of his bedroom on the first floor with axe and threatened them to shoot if they do not open the door. Then in order to save their lives they opened the door and as such eight persons armed with pipes gun, revolvers, Bhojali (daggers), sharp knife, bombs etc. entered into his room and beat him and his wife severely and demanded the keys of the almirah and safe, holding daggers from the front side and back side asking them to keep silent. Being afraid he handed over all the keys to them. Taking those keys they came to the ground floor room and opened the almirah and safe and also broke open the trunk and packed up all the ornaments and cash including a cash of Rs. 6,000/ - and Rs. 2,000/ - by breaking upon Laxmibhander (earthen pot for saving money), a gold chain weighing approximately 1 bhari, a necklace weighing approximately 11/2 bharies, 4 gold rings weighing approximately 11/4 bharies, two bouti (wide bungles) weighing approximately 1 bhari, 4 gold bungles weighing approximately 1 bhari, 2 bungles made of gold with bronze weighing approximately ¼ bhari, two pairs of ear ring weighing approximately 1/2 bhari, 4 gold plated red coral bungles weighing approximately 1/2 bhari, two pairs of kan passa (ear top) weighing approximately 1/2 bhari, gold gifted on the occasion of Annaprashan of their children weighing approximately 1 bhari and silver weighing approximately 2 bharies, one 14'' black and white Panoroma TV, two pieces of Santosh Radio set, one 5 cell torch light, one 3 cell torch light, two wrist watches (ladies and gents) and tore apart the clothes, quilts, mattresses etc. Though none of them was personally known to him but he saw the faces of those miscreants in the search light they used and he can identify them if he see them. Apart from those miscreants there were approximately 12/14 other miscreants who had been keeping watch on the road and in all they were 20/22 in number. Those miscreants after taking of those articles went through the field near Sabuj Sangha to the north -eastern corner of his house and fled away hurling bombs.
(3.) On the basis of the above written complaint which was received at the Raidighi P.S. on May 5, 2003 at 17.35 hours a Raidighi P.S. case No. 32 dated May 5, 2003 was started against the unknown persons under Section 395/397 IPC and 9B of the Indian Explosive Act and thereafter Section 412 IPC was added and the case was endorsed to S.I., Arabinda Jana, since deceased, who then investigated the case and thereafter on completion of investigation submitted charge sheet against ten accused persons including the appellants Rabiul Molla, Hafijul Gazi, Moloy Kumar Biswas and seven others under Section 395/397/412 IPC and under Section 9B of the Indian Explosive Act vide charge -sheet no.56 dated July 13,2003. Charges were framed on September 22, 2003 against the appellants Rabiul Molla and Hafijul Gazi along with seven others under Section 395 IPC alternatively under Section 412 IPC. A separate charge was also framed against the appellant Moloy Kumar Biswas under Section 412 IPC and when they denied their involvement in the crime, trial commenced. Prosecution examined 22 witnesses and also produced and proved certain documents and articles and thereafter on completion of trial and after examination of the appellants as also the other accused persons under Section 313 Cr.P.C. learned court below passed the impugned judgment. ;