M.K.BASU,J. - (1.) THESE two criminal appeals are directed against the judgments and orders of conviction and sentence dated 29 -5 -1992 passed by Shri A.K. Basu, the Additional Sessions Judge, Suri in Sessions Case No. 136 of 1987 (Sessions Trial No.2 of 1992) Both the appeals arising out of the same judgment and order (Appeal No. 192/92) having been preferred by the convict, Rakib Sheikh and the appeal No. 194/92 being filed by the convict, (Hidayatullah Sheikh) and both involving the same question of law and facts are taken up together. Charge was framed against both the accused persons under Section 396, I.P.C. for committing dacoity in the house of Kishorilal Mandal and for committing murder of Smt. Mamata Mandal, an inmate of that house, during the commission of such dacoity. The learned Trial Judge after considering the materials on record found both the accused guilty of the said offence, convicted them accordingly and sentenced each of them to suffer imprisonment for life. Being aggrieved by that order of conviction and sentence the accused -appellants have preferred the present appeal.
(2.) THE prosecution case is as follows. An FIR was lodged on 30 -4 -1988 at about 8.05 p.m. by one Kishorilal Mandal stating that on the previous night i.e., night of 29 -4 -1988 while he and other inmates of his house were asleep, a gang of six/seven dacoits raided their two storied house in order to commit dacoity. His "Bom Boude' (wife of his eldest brother) who was sleeping in the upper - floor of the house, first saw the dacoits and raised alarm and hearing her cries Kishorilal woke up and rushed to the varandah of the first floor of their house and found two dacoits to break the lock of the door of their front -side boundary wall. He cried and hearing his cries his three elder brothers, his mother and his second sister, Mamata, wore up and came out. The four brothers had a tussle with the dacoits. One of his elder brothers hit one of the dacoits with a Tangi and as a result that dacoit sustained injury on his body. The dacoits then were going away, but Kishorilal somehow arrested one of them and he and his brothers started beating that dacoit. At this time the dacoits who were standing outside the house hurled two bombs towards them (the inmates of the house). One of the bombs hit on the boundary wall and burst and the other bomb hit the chest of Mamata who was standing behind her brothers and as a result she sustained serious injuries on her person. At this they released that detained dacoit. Meanwhile, on hearing the alarm raised by the inmates of the house the villagers began to come to their house and seeing this the dacoits fled away without being able to take anything from the house. The dacoits had torch -lights, Lathis and Shovels in their hands. In the focus of their torch -lights the informants saw the dacoits and they would be able to recognise them if the dacoits were seen again. After the dacoits left, Kishorilal along with his elder brothers and some villagers took his injured sister, Mamata, to Ahmedpur P.H.C. in a cart and therefrom to Suri Hospital where she succumbed to her injuries in the next morning. In the FIR, it is also stated that some drops of blood of the dacoit who received a blow from the Tangi of the informant's elder brother could be found on the wall of their house.
(3.) ON the basis of this FIR police started investigation. During investigation, the Investigating Officer visited the place of occurrence prepared a sketch map of the place of occurrence, seized several articles therefrom under seizure lists, namely, blood stained mud one tangi, one Shovel, one torchlight, a pair of Chappal etc. The Investigating Officer also recorded statements of the witnesses under Section 161, Cr. P.C. Further, police conducted raids in search of the suspects in the nearby villages and receiving some source information that a man named. Hidyatullah having received injuries on various parts of his body was staying at village Makra, the Investigating Officer had been there and arrested that person and on interrogation the man stated before him (I.O.) that he had received injuries while committing dacoity at the disputed village, Kanaipur, and then he forwarded that accused person, named, Hidayatullah, to Suri Hospital for treatment. He also made a prayer before the S.D.J.M.. Suri for recording confessional statement of that accused person. However, when he was produced before the Magistrate for this purpose, he declined to confess. The I.O. also made a prayer before the S.D.J.M. for placing this accused in the T.I. Parade. T.I. Parade was held on 23 -5 -1984. He was identifies by the four T.I. Parade witnesses. viz., the informant Kishorilal (P.W.1) and his three brothers. The other accused Rakib Sk. surrendered before the Court of S.D.J.M. on 31 -10 -1984. He was also placed in the T.I. Parade which was held on 21 -1 -1985, of the four witnesses only two identified him and the other two failed to identify.;