GIRISH CHANDRA GUPTA, J. - (1.) THIS appeal is directed against a judgement and order dated 23rd May 1991 passed by the learned Assistant Sessions Judge (Additional). Purulia in Sessions Trial No. 8 of 1991 arising out Sessions Case No. 38 of 1989 convicting the accused Khedan Mahato and the accused Puchi Ansari for the offence punishable under Section 412 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for 8(eight) years as also to pay a fine of Rs.2,000/- in default to suffer further rigorous imprisonment for a period of one year.
(2.) THE facts and circumstances of the case briefly stated are as follows : On 6th August, 1985, 5/6 persons broke into the house of one Behari Singh in the night. He was overpowered on the point of arms including gun and bhojali and was asked to produce money including the gun which he possessed. Behari Singh at that point time was in his house accompanied by his wife and minor children. He gave in to the demand of the dacoits; cash money including a double barrel gun bearing No. D.B.B.L. 46927 were forcibly taken away by the aforesaid 5/6 persons and they decamped from the house of said Behari Singh. When hue and cry was raised the culprits opened fire seriously injuring Soma, a neighbour of the said Behari Singh. Written complaint was lodged with the police station in the following morning i.e. 7th August, 1985. Inspite of best efforts the police could not get any clue for sometime. On 20th December, 1985 the police, attached to Purulia which is about 50 K.Ms. away from the place of occurrence situate at Jhalda, acting on source information, raided Khamarhari of one Mahato wherein the appellants were found sleeping on the platform of a bullock cart. There were four pillows made of straw and from beneath the pillows a gun was recovered bearing D.B.B.L. Gun No.46927. The Purulia Police had no knowledge about any dacoity committed in the house of Behari Singh in Jlialda on 6th August, 1985. They, as such, started a case against the appellant under the Arms Act. Subsequently, it transpired that the gun recovered from the appellants was the same gun looted from the house of Behari Singh. The P.W. 1, de facto complainant Behari Singh and the P.W. 3 son of Behari identified the gun and the same was duly marked material exhibit. The gun shot injury inflicted upon Soma, a neighbour of Behari Singh, was treated by Dr. Dutta, P.W. 13. Large number of witnesses were examined who deposed about the dacoity committed in the house of the de facto complainant Behari Singh but the identity of the dacoits could not be established because the act was committed in the night and the witnesses could not identify the dacoits. The learned Trial Judge, as such, held as follows : "I find that none of the P.Ws. has stated the names of the accused persons. They also did not identify the accused persons at the time of trial. In this case the T.I. Parade of the accused persons was not held. The evidence adduced by the prosecution regarding the commission of dacoity by the accused persons in the house of P.W. 1 is not sufficient to warrant conviction. There is nothing on evidence to show that these accused persons committed dacoity in the house of P.W. 1. P.W. 13 is the Medical Officer who examined Rajkishore Mahato and Soma Mahato on 7.8.85 and found injuries on their person. But the factum of injury on the person of'Sotna and Rajkishore would not by itself prove that it was caused by these two accused persons at the time of Commission of dacoity in the house of P.W. 1. I have already held that there is no evidence to show that these accused persons committed dacoity in the house of P.W. 1. Consequently, it cannot also be said that these two accused persons caused hurt to Rajkishore Mahato and Soma Mahato. Both the charges under Sections 395 and 397 I.P.C. therefore, fail. The accused persons are, therefore, not guilty of the charges under Sections 395, 397 of the I. P. C."
(3.) HOWEVER , as regards the charge under Section 412 of the Indian Penal Code the learned Trial Judge held, inter alia, as follows : "from the evidence it is clear that the gun was stolen from the house of P.W. 1 in the incident of dacoity and that the stolen gun was recovered from the possession of the accused persons." Mr. De, the learned Senior Advocate appearing in support of the appeal, advanced the following submissions : (a) The case of the appellants that the gun was never seized from their possession and that they had been arrested by the police from their respective house is probabilised by the fact that the P.W. 1 deposed in his evidence that "the police officer showed me the gun about one month after the incident." (b) Mr. De submitted that the dacoity, if any, was committed on 6th August, 1985 and the gun according to the case of the prosecution was seized on 20th December, 1985 whereas the P.W. I claims to have been shown the gun by the police within a month after the dacoity. Ile contended that this goes to show that the entire case of the prosecution is false and the appellants have been falsely implicated. He, therefore, prayed for outright acquittal. By way of an alternative submission, it was contended that in the event his prayer for acquittal is not acceded to by the Court, the punishment should adequately be reduced regard being had to the tact that the appeal is pending for more than eighteen years and the appellants ore now on the wrong side of their age. ;