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Criminal Appeals Nos. 370 and 380 of 1967, decided on 1st April 1969.

S. 395‑Dacoity‑No enmity established between prosecution witnesses and accused and no reason shown for such witnesses to implicate accused falsely- Accused identified in test identification parade found to be without any defect or fault‑Conviction not interfered with.

S. 395‑Dacoity‑Sentence-- Accused while committing dacoity badly beating up three persons and one of them seriously injured‑Sentence of 4 years' R. I., held, to be too low in circumstances of case‑Sentence, however, not enhanced in view of occurrence having taken place 3 years before and accused being in custody since then.

Akram Hossain Amin and Moinul Huq for Appellants (Appeal in No. 370/67).

Abdus Salam Khan for S. M. Nurul Alam for Appellant (in Appeal No. 380/67).

Syed A. N. M. Nasiruddin for the State (in both the Appeals).

This judgment will dispose of Appeals Nos. 370 and 380 of 1967.

In Appeal No. 370 there are two appellants and in Appeal No. 380 there is only one appellant. All these three appellants were convicted under section 395, Pakistan Penal Code, and sentenced to rigorous imprisonment far four years each by the learned Sessions Judge, Jessore.

The prosecution case, in short, is that in the house of Momrej Ali Dafadar (P. W. 1) a dacoity was committed in the morning of 13‑7‑66. Momrej with his wife was sleeping in the middle room of the north bhiti building and his two cousin sisters, Razia and Asia were sleeping in the western room of the said building. The eastern room was unoccupied. His uncle, Manik Dafadar, was sleeping in the southern verandah of the building and his father, Jaban Ali Dafadar, was in the thatched but in the west bhiti of the homestead. At about 1 or 2 o'clock in the morning, 10 to 12 dacoits raided the house broke open the door of the building, entered into it being armed with daos, rollers, torches, etc., assaulted the inmates of the house and looted away property worth Rs. 2,800 in cash, ornaments, clothes and other articles. They dragged out Momrej from inside the room tied him with the leg of a cot in the verandah, beat him mercilessly and demanded money from him when he, out of fear of life, told them the place where he had kept the money from where the dacoits took away the cash. His uncle, Manik Dafadar, was equally beaten up and tied to another leg of the same cot in the verandah. His father who was sleeping in the west bhiti thatched but was also assaulted. Momrej's wife was robbed of her ornaments. During the commission of the dacoity the members of the gang were moving about freely, flashing torches, and looking after each, ornaments and other articles. They had kept the torches burning when Momrej and his uncle were being assaulted. Immediately after the occurrence, the neighbours, Abdul Gani Dafadar (P. W. 7), Babur Ali Khan (P. W. 8), Abdur Rahman (P. W. 9) and others came to the house of Momrej Dafadar and he told them that he and his uncle had recognised three dacoits by face who had assaulted them and committed dacoity in the building. P. W. 10 Belayet Hossain, a relation of Momrej, who lives in another house, having heard about the dacoity committed in Momrej's house, went to Manirampur Police Station and lodged a G. D. entry at about 1‑25 p. m., on that very day, i.e. 13‑7‑66. On getting this information, the Police Sub‑Inspector came to the house of Momrej towards the evening of the same day, recorded his F. I. R. and took up investigation of the case. Momrej and his uncle were sent to the local Medical Officer, P. W. 4 attended to their injuries and gave them medical aid. On completion of investiga tion, the police submitted charge‑sheet against the three appellants before us who had committed dacoity in the company of 10 to 12 others in the house of Momrej Dafadar and after a preliminary enquiry was held by a Magistrate, First Class, the appellants were committed to the Court of Sessions to take their trial.

The defence of appellant Iman Ali Fakir (Appeal No. 270/67) was that he was from a neighbouring village and used to play football in which connection Momrej Dafadar had known him and he out of grudge had implicated him falsely in this case. The defence of Kalipada Haldar (Appeal No. 370/67) was that he lives in the neighbouring village and Momrej has lands adjacent to his tank and in that connection Momrej used to visit that area and had known Kalipada from before and lead falsely implicated him in the case. The defence of appellant Nirmal Kanti Biswas (Appeal No. 380/67) is that he was the Secretary of the Thana Council Project and in that connection was constructing bridge and roads in the area by employing labour and while doing so he came to learn that one Abut Hossain Molla and Momrej were carrying on black marketing with the help of his labourers and Nirmal asked the labourers not to indulge in the nefarious activity as a result of which he has been implicated in the case of Momrej by the said Abut Hossain Molla.

P. Ws. 1, 2 and 3 are the witnesses of the occurrence. From the evidence of P. Ws. 1, 2 and 3 it is established that there was a dacoity committed in the house of P. W. 1 Momrej Ali Dafadar in the morning of 13‑7 66 between 1 and 2 o'clock and that while the inmates of the house were sleeping the dacoits entered into the building by breaking open the door with the help of a "dheki". It is also established from the evidence of these witnesses that the dacoits used daos, lathis and torches while committing dacoity and that they looted away considerable amount of cash, ornaments and other articles from the house of Momrej Dafadar. They also beat up Momrej, his father (P. W. 3) and his uncle (P. W. 2) tied Momrej and his uncle to the legs of a cot in the verandah of the building. It is further established from the evidence of the first two witnesses that they had recognised the three appellants before us by face which fact was mentioned in the F. I. R. lodged with the police in the evening of that very day. That P. Ws. 1, 2 and 3 were assaulted by the dacoits has been proved from the medical certificates of P. W. 4, Khandkar Abdul Wadud, who found on the person of Momrej Dafadar as many as three injuries, one of which was an incised one 2 ' by 4 " on the back of the left shoulder caused by a sharp‑cutting weapon and several scattered swelling marks on the back. On the person of P. W. 2 Manik Dafadar the Medical Officer found as many as four injuries caused by blunt weapon. On the person of P. W. 3 Joban Ali Dafadar, the father of Momrej Ali Dafadar, the Medical Officer found two injuries which were also caused by blunt weapon. The Medical Officer was not cross‑examined by the defence.

P. Ws. 7, 8 and 9 who were close neighbours of the informant came to his house hearing a row immediately after the dacoits had left, saw the depredations committed in the house of Momrej and heard from him about the dacoity and the looting of his properties by them. They were also told by Momrej and Manik Dafadar that they had identified by face three of the decoits. They further said that they could do so as the dacoits were moving freely keeping the torches burning while beating up Momrej Dafadar and Jaban Ali Dafadar. The defence has not been able to discredit any of the six witnesses by cross‑examin ing them. Later, Momrej Dafadar and Manik Dafadar identified the appellants before us in the two test identification parades held inside the Jessore Jail. The evidence of P. Ws. 5 and 6, the two Magistrates, who held the test identification parades, does not disclose any defect in the conduct of the test identification parades inside the jail. According to these two witnesses, Momrej and Manik Dafadar identified appellant Kalipada Haldar, Nirmal Kanti Biswas and Iman Ali Fakir. It is also found from the evidence of P. Ws. 7, 8 and 9 that they had seen the injuries on the persons of P. Ws. 1, 2 and 3 immediately after the dacoity when they had gone to the house of Momrej.

Mr. Abdus Salam Khan, the learned Advocate for the appellants attempted to argue that had the fact of dacoity been true there could not be any G. D. entry made at 1‑25 p. m. instead of a F. I. R. lodged with the police in the thana which lies at only a distance of 8 miles from the village of Momrej, but w e cannot accept this contention of the learned Advocate for the simple reason that from the evidence of P. W. 10 Belayet Hossain it is found that he having heard from one of his cousin sisters that a dacoity was committed in the house of Momrej went to the thana without going to the house of Momrej and taking any particulars of the crime and informed the police which was recorded as a G. D. entry. On the basis of this G. D. entry the police moved in the matter, came to the locality, obtained a F. I. R. from Momrej and investigated the case. For Momrej and Manik Dafadar not to have gone to the thana in the morning, the reason is found from the fact of their having been taken to Nehalpur Charitable Dispensary in an injured condition for treatment. This took some time and thus they were prevented from going to the police station before the police had arrived in the village of occurrence on receipt of information from P. W. 10 Belayet Hossain. We, therefore, do not find any substance in this contention of the learned Advocate.

Mr. Salam Khan then argued that Nirmal Kanti Biswas was a respectable person and he has been implicated falsely in the case as it is not expected of a man of his status to commit such a heinous crime. From the evidence on record, we find no reason to accept this contention of the learned Advocate. No doubt, Nirmal has said that he was a contractor and Secretary of the Thana Council Project but that alone does not constitute sufficient ground to hold that he could not commit a dacoity. On the question of identification of the appellants before us by Momrej and his uncle. Manik Dafadar, we do not have any doubts with regard to the statements made by, P. Ws. 1 and 2 in this behalf. The suggestions given by the defence to the prosecution witnesses that the appellants were known to them from before, have been denied and nothing concrete has been elicited from the prosecution witnesses by the defence from which it can be said that the prosecution witnesses 1 and 2 having known the appellants from before implicated them in the case falsely. Even if they were known from before to the prosecution witnesses, we find no reason for the prosecution witnesses to implicate the appellants in a crime of the nature of dacoity without any reason for the same. No enmity has been established between Momrej, Manik Dafadar and Joban Ali and any of the appellants before us. Further, Momrej and Manik Dafadar have identified the three appellants in test identification parades in the conduct of which there was trio defect or fault.

In the circumstances, we find no reason to interfere with the order of conviction of the appellants. In a case of this nature where three persons were badly beaten up and one of them severely injured, the sentence of rigorous imprisonment for four years under section 395, P. P. C. is too low. The occurrence having taken place sometime in 1956 and the appellants being in custody since then we do not propose to disturb the sentences at this late stage.

In the result, therefore, the two appeals are dismissed and the conviction and sentences of the appellants are affirmed.

I agree.

Appeals dismissed.

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