Judgment P.K.Deb and D.P.S.Choudhary JJ. 1. Both these appeals have been heard analogously as they arise out of the common judgment and order passed by the then 3rd Additional Sessions Judge, Purnia, in Sessions Trial No. 455 of 1989 on 13.7.1990, whereby and whereunder, the accused-appellants of both the appeals along with another Maghu have been convicted under Section 396 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. As per prosecution case a dacoity was committed in the night between 4/5 October, 1988 at the house of Matiur Rahman and his two brothers situated contiguous to each other at village Tariya under Paharkatta Police Station in the district of Purnia. In course of the dacoity, brother of the informant, Matiur Rahman, namely, Azizur Rahman was killed by fire-arms by the dacoits. The informants case, as is revealed from the fardbeyan which was lodged on the next date i.e., on 5.10.1988 before the police is that, on the previous night he was sleeping in his house but, rose up on hearing dogs barking towards the north side of the house. The informant flashed torch but, could not see anything then he came out of the house and sat in the varandah and started smoking. After a while some dacoits entered inside the angan by breaking the bamboo fencing and he heard one dacoit was uttering to kill the informant. Out of fear the informant fled away towards south and reached at the house of Salimuddin. His another brother Faizur Rahman, who was sleeping in his room, also followed him on hearing the sound of breaking of bamboo fencing and both of them from the house of Salimuddin flashed their torches and in the light of that flash they could recognise four accused-persons including the accused-appellants and another Maghu, who has not filed appeal. Besides the four accused-persons, they could also see several others numbering 17 to 18 persons in the angan having armed with bow and arrows and from their faces, it could be understood that they were of tribal origin. The dacoits entered inside the room and took away articles including a (sic) details of which have been in the fardbeyan itself. Worth Rs. The dacoits entered inside the room and took away articles including a (sic) details of which have been in the fardbeyan itself. Worth Rs. 1,200/- and when the informant and his brother raised bulla then the villagers reached at the spot and the dacoits fled away by the way through which they had entered inside the house. The informant, his brother and other villagers chased the dacoits for some distance. As the dacoits were indulging in firing and out of fear they did not chase more and came back. When they returned home they found their brother Azizur Rahman lying dead in the varandah of his room. The injuries were found to be caused by fire-arms. On reaching home the informant and his brother disclosed the identification of the four dacoits before the villagers and the other inmates of the house. It was further mentioned in the fardbeyan that some days prior to the occurrence at Panjipara Hat the accused Maghu (non-appellant) had demanded a wrist watch from Azizur Rahman, the deceased brother of the informant. Azizur Rahman denied to return the same. After some days Maghu further demanded the wrist watch but, on denial being made by Azizur Rahman, he had threatened him of dire consequences. It was also alleged that on the previous day of the occurrence Maghu was seen roaming in the village in suspicious manner. It was alleged by the prosecution that occurrence was committed by Maghu and his associates for the previous grudge and also of the threatening as given to Azizur Rahman. 3. During the course of investigation, the houses of the accused-persons were searched but, nothing incriminating could be recovered and the accused-persons were found absconding. Ultimately on issuance of warrant of arrest by the Court at the instance of the Investigating Agency and issuance of processes under Sections 82/83 of the Code of Criminal Procedure, the accused-persons could be arrested at Sikkim with the help of Sikkim Police where the accused-persons were found to be earning through labour work. On being committed to Sessions, charges were framed against the accused persons under Section 396 of the Indian Penal Code and when the same was read over and explained to the accused-persons, they pleaded not guilty. 4. On being committed to Sessions, charges were framed against the accused persons under Section 396 of the Indian Penal Code and when the same was read over and explained to the accused-persons, they pleaded not guilty. 4. The defence case is that the accused-persons have been falsely implicated at the instance of Mehdi Hussain, who was working as informer of the police as there was some dispute with Mehdi Hussain and the accused-persons and such dispute was lodged to the gram panchayat. 5. For and on behalf of the prosecution as many as nine witnesses have been examined. Out of them PW 9 is Smt. Sabita Bhattacharya, who was Dy. Superintendent of the Sadar Hospital at Purnia at the relevant time. She held post-mortem examination on the dead body of Azizur Rahman and found fire-arm injury on the vital parts of the body which caused his instantaneous death. PW 8, Dilip Kumar Sinha was the then officer-in-charge of Paharkatta Police Station and he held investigation in the case. PW 7, Hakimuddin, the sarpanch of the village, is only a formal witness. PW 6, Hayatun Khatun is the wife of the deceased Azizur Rahman and she had deposed about the commission of the dacoity in the house and she also stated that she was reported all the names of the four dacoits by her husbands brothers, namely, the informant and Faizur Rahman. PW 5, Matiur Rahman is the informant in the case and the eye-witness of the occurrence. PW 4, Md. Mumtaz Alam is a villager, who came to the spot at the relevant time on hearing India and chased the dacoits. He supported the prosecution story to the effect that on returning home he along with others after chasing the informant had named the four accused-persons, PW 3, Faizur Rahman is another brother of the informant Motiur Rahman and he was also an eye-witness to the occurrence and has supported the prosecution story in toto. He supported the prosecution story to the effect that on returning home he along with others after chasing the informant had named the four accused-persons, PW 3, Faizur Rahman is another brother of the informant Motiur Rahman and he was also an eye-witness to the occurrence and has supported the prosecution story in toto. PW 2, Patla @ Hasim and PW 1, Mainuddin are the co-villagers and they have supported the portion about the commission of dacoity at the house of the informant Motiur Rahman and also about the chasing of the dacoits by the villagers including themselves but, they did not support about the disclosure of the names of the dacoits by the informant and his brother in the night of the occurrence and at this the two witnesses have been declared hostile and they were confronted with their statements made under Section 161, Cr PC, before the Investigating Officer. Such confronted statement had also been proved by the Investigating Officer, PW 8. 6. Regarding the enmity between the parties one DW has been examined as DW 1 Md. Hasim. He has proved some papers showing dispute of the accused-persons with Mehdi Hussain. 7. On scrutiny of the evidence on record the learned Sessions Judge arrived at the finding that the prosecution could be able to prove the charges beyond all reasonable doubt and as such convicted all the accused-persons under Section 396 of the Indian Penal Code and sentenced them as mentioned above. 8. It has also been mentioned that out of four convicts, besides Maghu, others had preferred the above-mentioned two appeals. The appeal filed by Basiruddin @ Basru from in jail and as such, as no body was there to argue his case Mrs. Anwita Jha was appointed to argue the case for and on behalf of the appellant Basiruddin and she should be paid her fees from the High Court Legal Aid Committee. 9. The factum of dacoity on the relevant date at the house of the informant and in course of dacoity, the brother of the informant Azizur Rahman breathed his last is almost admitted. All the witnesses including the hostile witnesses have supported the fact of dacoity. 9. The factum of dacoity on the relevant date at the house of the informant and in course of dacoity, the brother of the informant Azizur Rahman breathed his last is almost admitted. All the witnesses including the hostile witnesses have supported the fact of dacoity. Although, booties of the dacoity could not be recovered but, the factum of dacoity could not be dislodged even after lengthy cross-examination of all the witnesses from the side of the defence and it was fairly conceded Mrs. Anjana Prakash appearing for and on behalf of the other two appellants that the factum of dacoity was established. She has challenged about the identification of the accused appellants as alleged from the side of the prosecution. Regarding identification of the accused-appellants, there are two eye-witnesses, namely, PW 5, Matiur Rahman the informant and his brother PW 3, Faizur Rahman. They have categorically stated that both of them had got three cell battery torches in their hands at the relevant time and by the flash of their torches from the house of Salimuddin where they took shelter after fleeing away from their house when the dacoits entered, have identified the four accused persons. These four accused-persons were known persons and as such even in dim light also the known persons could be identified. It has been argued strenuously by the learned counsel for the accused-appellants that from the topography of the place of occurrence as prepared by the Investigating Officer, it could be found that the house of Salimuddin is situated at far-off place and as such, from such a distance by the flash of torch persons could not have been identified. We have perused the topography in the light of the examination and cross-examination of the witnesses including the Investigating Officer. In the topography prepared distance had not been given but, it could be found that houses of the informants party including that of Salimuddin are situated contiguous to such other surrounding a single angan. Only on the north side, there is fencing through which, the dacoits had entered. Although, the distance is not there but, when the houses are situated surrounding the angan then it cannot be said that the house of Salimuddin is situated at far-off distance. Only on the north side, there is fencing through which, the dacoits had entered. Although, the distance is not there but, when the houses are situated surrounding the angan then it cannot be said that the house of Salimuddin is situated at far-off distance. Rather from the house of Salimuddin the angan is at a quite visible distance and in the flash of two torches identification could be made very well, that too, of the known persons since before. Thus, on the point of identification we do not find much force in the submissions of the learned counsel appearing for and on behalf of the accused-appellants. Moreover, on the point of identification two other witnesses have also supported about the disclosure of the names soon after identification by the informant and his brother. These witnesses are PW 6, Hayatun Khatun and PW 4, Md. Mumtaz. Hayatun Khatun may be taken as partisan witness as she happens to be the wife of the deceased Azizur Rahman but, Md. Mumtaz (PW 4) is the independent witness, who came to the place of occurrence on hearing hulla, and also accompanied the informant and the villagers in chasing the accused-persons. It appears from the evidence of PW 1 and PW 2 that they have intentionally suppressed and concealed regarding the disclosure of the names by the informant and his brother. PW 4, Mumtaz Alam was present in the house of the informant after chasing along with the PW 1 and PW 2 and disclosure was made by PW 5, Matiur Rahman and PW 3, Faizur Rahman in presence of all the villagers, namely, PWs 1, 2 and 4 and out of them PW 4 supported the same. PW 1 and PW 2 did not support although, regarding the disclosure they had stated before the Police as is found from the statement recorded by the Investigating Officer. Be it what it may, leaving aside these two hostile witnesses there also remains one independent witness PW 4, Md. Mumtaz Alam before whom disclosure was made regarding identification of the accused-persons on the very night of the occurrence soon after the dacoity was committed. 10. Regarding the seizure of the means of identification voluminous argument has been placed for and behalf of the accused-appellants. Mumtaz Alam before whom disclosure was made regarding identification of the accused-persons on the very night of the occurrence soon after the dacoity was committed. 10. Regarding the seizure of the means of identification voluminous argument has been placed for and behalf of the accused-appellants. It appears that although, the informant and his brother Faizur Rahman had shown their torches to the Investigating Officer in course of investigation but, the same was not seized by the Investigating Officer. That was the fault on the part of the Investigating Officer but, by that alone the means of identification cannot be disbelieved. This part of evidence about showing of the means of recognition to the Investigating Officer had not only been stated by the PW 5 and PW 3 but, the same had been supported by the Investigating Officer (PW 8) also. At the last stage of recording of deposition, it appears that PW 5, the informant had been re-called by the prosecution and production was made of the two torches and those were made exhibits. This appears to be an after-thought one and we are not taking much importance of it as that could be considered only an attempt to repair the prosecution case. But, even after the leaving aside that repairing portion the fact remains that the informant and his brother were stating in their statements in the fardbeyan that by flash of two torches the dacoits could be recognised and the same story had been maintained all along till trial and those torches were shown to the Investigating Officer. He had not seized the same but, admitted about showing of means of recognition to him by PW 3 and PW 5. The identification and the means of recognition has rightly been held to be established by the learned Sessions Judge beyond all reasonable doubt. 11. Regarding death of Azizur Rahman there is no eye-witness to the occurrence but, he died during the course of dacoity is almost admitted. It has also been stated by PW 5 and PW 3 that during the course of dacoity from the house of Salimuddin they could hear the sound of firing and that the dacoits were armed with fire-arms had also been supported by PW 4 and PWs 1 and 2 as while retreating they had fired from arms as a result of which being afraid, the chasers had to come back. The death by fire-arms of Azizur Rahman has also been proved beyond all reasonable doubts as per the concluding evidence of PW 9, Dr. Sabita Bhattacharya. Thus, on independent scrutiny of the evidence on record, we also come to the same finding that the prosecution could be able to prove the charges beyond all reasonable doubts against the accused-appellants. 12. That there was enmity of the accused-persons with Mehdi Hussain has got not much force in the present case. Mehdi Hussain is not a witness to the prosecution case although he was found to be taking steps in favour of the accused-appellants in the case. 13. The conviction awarded by the Sessions Judge is proper and justified on the basis of the materials on record and as such there is nothing to interfere with. The sentence imposed is also proper and justified. 14. In the result, both the appeals are dismissed having no force. 15. Accused-appellant Samir @ Jalil @ Samruddin and Kamruddin @ Bhilsa are directed to surrender before the trial Court within a period of four weeks from this date to serve the balance of the sentences imposed in default, their bail-bonds shall be cancelled and coercive steps should be taken to bring them into book.