Judgment · High Court · 2012

#2. On 15.02.2002, at about 1.50 am, 15-16 persons, armed with gun, spade a (i) nd other weapons, came to the house of the informant, Mohbub Ahmed Tapadar, tied up the informant and the members of his family and took away gold ornaments, on e tape recorder, wrist watches and money, in cash. During the course of dacoity so committed, the miscreants also hit Nurul Islam Tapadar, younger brother of th e informant, on his head. Though, on hearing hulla raised from the house of the informant, their co-villagers had come out of their houses, they could not enter the house, where dacoity was being committed, because the miscreants chased the m away with the help of gun. A First Information Report being lodged, in this re gard, at Badarpur Police Station, police registered a case under Sections 395/39 7 IPC. (ii) During the course of investigation, a Test Identification Parade (in sho rt, TIP) was held and the present appellant, Fakar Uddin, was identified by PW4 (Md. Jahur Ahmed Tapadar) and, on completion of investigation, police submitted charge-sheet, under Sections 395/397 IPC, against the present accused-appellant, Fakar Uddin, and one Jamal Uddin.

#3. , was framed, both the accused pleaded not guilty thereto. At the trial, when a charge, under Section 395 read with Section 397 IPC

#4. In support of their case, prosecution examined altogether 10 (ten) witne sses. The two accused were, then, examined under Section 313 Cr.PC and, in their examinations aforementioned, they denied to have committed the offences, which were alleged to have been committed by them, the case of defence being that of d enial. No evidence was adduced by the defence. 5. However, having found the accused Jamal Uddin not guilty of the offences , which he stood charged with, the learned trial Court acquitted him accordingly ; but having found the present accused-appellant, Fakar Uddin, guilty of the off ences charged with, convicted him and passed sentences against him as mentioned above. Hence, this appeal. 6. ellant, and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. We have heard Mr. N.H. Mazarbhuiya, learned counsel, for the accused-app

#7. While considering the present appeal, it needs to be noted that the fact that a dacoity was committed, on 15.02.2002, at the dead hour of the night, at the house of the informant, remained unshaken. Naturally, therefore, the chief c ontention of the appellant, in the present appeal, is that his identification by PW4 at the TIP and also at the trial ought not to have been made, in the absenc e of any other evidence, the foundation for his conviction for the offences, whi ch he stood charged with. Additionally, it is submitted, on behalf of the appell ant, that even according to the case of the prosecution, injury was caused only to Nurul Islam Tapadar and the doctor (PW2), who had examined the said injured, found merely a lacerated injury on the left side of his forehead and that the s aid injury was, in the opinion of the doctor, simple in nature and caused by a b lunt object and, hence, in such circumstances, when no deadly weapon was used an d no grievous hurt was caused or attempted to cause death, the accused-appellant ought to have been convicted under Section 397 IPC.

#8. Having scanned the evidence on record, we do not find that the identific ation of the accused-appellant, Fakar Uddin, by PW4, at the trial, suffers from While, therefore, we uphold the conviction of the accused-appellant unde any infirmity, legal or factual. This identification, at the trial, is substanti ve evidence against the accused-appellant and the same stands corroborated by id entification of the accused-appellant at the said TIP. In the circumstances aforementioned, we do not find any reason to hold t 9. hat the conclusion of guilt, which the learned trial Court had reached against t he accused-appellant, was, in the face of the evidence on record and the law rel evant thereto, not sustainable under Section 395 IPC. In the absence, however, of any evidence showing that the dacoits had us 10. ed any deadly weapon or had caused grievous hurt to any person or attempted to c ause death or grievous hurt to any person, the penal provisions of Section 397 I PC were not attracted. The conviction of the accused-appellant, under Section 39 7 IPC, cannot, therefore, be sustained; whereas his conviction, under Section 39 5 IPC, cannot, for the reasons already discussed above, be interfered with. 11. r Section 395 IPC, we set aside his conviction under Section 397 IPC. 12. Coming to the sentence, which has been passed against the accused-appell ant, we are of the view that in the facts and attending circumstances of the pre sent case, a term of rigorous imprisonment for a period of six years with fine o f Rs.1,000/- and, in default of payment of fine, a term of simple imprisonment, for a period of three months, would serve the ends of justice. In the result, this appeal partly succeeds. While conviction of the accu 13. sed-appellant, under Section 395 IPC, is sustained, his conviction, under Sectio n 397 IPC, is hereby set aside and, for his conviction under Section 395 IPC, th e accused-appellant stands sentenced to suffer rigorous imprisonment for a perio d of six years with fine of Rs.1,000/- and, in default of payment of fine, suffe r simple imprisonment for a period of three months. 14. With the above modifications, which we have recorded in the conviction a nd the sentence, which were passed against the accused-appellant, this appeal sh all stand disposed of. 15. Send back the LCR.