C. Jagannadhacharyulu, C.J.
1. This is an appeal filed by the accused in Sessions Trial 18 of 1966 on the file of the Sessions Court, Tripura, against their conviction under Section 895 I.P.C. and sentences that they should undergo R.I. for 2 years each.
2. The case of the prosecution is that in the midnight of 21.1.964 the appellants and some others committed dacoit in the huts of P.W. 2 Chandradhan Deb Barma and P. W. 6 Sobha Chandra Deb Barma in the village of Taikarma and stole away properties after causing injuries to the inmates, that P.W. 1 (Sonaram Deb Barma) who is the younger brother of P. W. 2 (Chandradhan Dab Barma) lodged a complaint Ext. P-I at about Section 30 P.M. on 22.1.1964 in Teliamuri Police Station, that P.W. 18, the officer-in-Charge of the Police Station registered the case and investigated into it, that he arrested the first appellant Bir Kumar Deb Barma on 24.1.1961 and seized a knife M.O. 17 under Ext. P-10 from him, that he got the injured persons including the first appellant who too received injuries examined by P.W. 17 the medical officer in charge of Teliamura Health Centre and that the appellants and some more-persons, against whom charge-sheet was submitted on 10.1.1965, were guilty of the offence under Sections 395 and 397, I.P.C.
3. The other accused were said to have been-absconding. The learned Sessions Judge framed charges against the appellant under Section 395, read with Section 397, I.P.C. After trial, he found that the appellants were guilty of the offence under Section 395, I.P.C. and convicted them thereunder and sentenced them to undergo S.I. for 2 years each. Hence the appeal by the accused persons sent up from the Central Jail, Agential.
4. The point for determination is whether the appellants are guilty of the offence under Section 395, I.P.C.
5. That there was a dacoit in the hats of P.Ws. 2 and 6 (Chandradhan Deb Barma and Sobha Chandra Deb Barma) in the midnight of 21.1.1964 is proved beyond all reasonable doubt. (After discussing evidence the judgment-proceeded )
7. So, it is evident that in the night of 21.1.1964 there was a dacoity in the huts of P.Ws 2 and 6 (Chandradhan Deb Barma and Sobha Chandra Dab Barma).
8. The next marital question for determination is whether the appellants committed the dacoity. (After discussing the evidence the judgment proceeded,)
10. The learned Counsel for the appellants, who was appointed as antics curiae, pointed out certain discrepancies in the oral evidence of the witnesses and argued that their evidence regarding the identity of the appellate cannot be believed. His first contention is that there was discrepancy with regard to the time when the fire was kindled, P.W. 2 (Chandribhan Deb Barma) did not state in the Committing Magistrate's Court that he asked his daughter P.W. 5 (Smti. Dhana Lakshmi Dab Barma) to kindle the fire by placing bamboos in the hearth. P.W. 5 (Smti. Dhana Lakshmi Dab Barma) stated in the Sessions Court that she kindled the fire before the dacoit entered into the hut. Bat her version before P.W. 18 the investigating officer was that the kindled fire out of fear when the dacoits were tying her parents and husband to the poets of the hut. Bit, the consistent evidence of P.Ws. 2 to 5 (Chandrabhan Deb Barma, Devendra Deb Barma, Smti. Lampati Dab Barma and Smti. Dhana Lakahrai Deb Barma) is that fire was kindled in the hearth with bamboos and that in the emitted light they identified the appeal lasts and two others. That their version about the existence of hearth and kindling fire with bamboo is true is clear from Ext. P-1, wherein it was mentioned specifically that the fire was kindled by P.W. 5 (Smti. Dhana Lakahmi Deb Barma) with bamboos. It is a matter of common knowledge that in the hilly villages fire is always made to be present in the hearth in the huts, so that it may be readily kindled with bamboos or other fuel. So, there is nothing unnatural or artificial if P.W. 5 (Smti. Dhana Lakshmi Deb Barma) kindled the fire. Besides, it his to be noted that P.Ws. 2 to 4 (Chandrabhan Deb Burma, Davendra Deb Barma and Smti. Limputi Dab Barma) were tied to the posts. But, P W. 5 (Smti. Dhana Lakahmi Dab Barma) was not tied. As She was free, she might have kindled the fire. As such, the time when she exactly kindled the fire pales into insignificance.
11. The second contention of the Counsel for the appellants is that P.W. 3 (Devendra Deb Barma) deposed as per Ext. D-2 in the Committing Magistrate's Court that the dacoit extinguished the fire with water, while he deposed in the Sessions Court that they put cut the fire by trampling on it. I do not consider that this is a material discrepancy.
12. The third contention of the Counsel for the appellants is that there is discrepancy in the evidence of witnesses regarding the dress said to have been worn by the appellants and the other dacoits when they committed the dacoity. According to P.W. 2 (Chandrabhan Deb Barma) the first appellant wore a pant and a shirt while the second appellant wore a shirt and a napkin. But, P.W. 3 (Devendra Deb Barma) stated that the second appellant wore a napkin without any upper garment and that the other dacoits had upper garments, P.W. 4 (Smti. Lampati Dab Barma) deposed that both the appellants wore shirts and napkins. P.W. 5 (Smti. Dhana Likshmi Deb Barma) deposed that the firs appellant wore a pant and a book coat, while the second appellant wore a dhoti and a shirt As rightly pointed out by the learned Serious Judge the discrepancies might have arisen because the witnesses gave evidence 8 years after the occurrence took place. It is highly unnatural to ex pace the eye. witnesses to loosely study the nature of the dress each dacoit wore, when the dacoity was taking place in the hub and when there was pell-mell in it If the witnesses spoke to the exact dress worn by each and every dacoit with, oat any discrepancy, ten it would be a clear case of tuition. The witnesses are simple village folk. The dacoity took place in the dead of the night. To expect the witnesses to speak to the garments worn by the dacoits with exactitude is nothing out to expect a, clear mental gymnastics.
13 Fourthly, the learned Counsel for the appellants contended that the dacoits were all said to have been known to the eye witnesses and that in such a case they would have masked themselves as hold in Ram Shankar v. State of V.P. A.I.R 1956 SC 441. It is not necessary that in every case the dacoits should come mask, ed to avoid identity. The facts and the circumstances of each case vary. There is nothing unnatural if the dacoits thought that they would not be identified because they committed dacoity in the dead of the night and that, therefore, they might have gone unmasked.
14. Then the appellants' Counsel contended that the appellants being to the congress party, while the P.Ws. mentioned above belong to the communist party and that, therefore, or account of political factious the P.Ws. foisted the case upon the appellants. But, there is no evidence to show that there was any enmity between the P.Ws. mentioned above and the appellants. I do not consider that the political affiliations of the parties have any thing to do with this case As the appellants were known to P.Ws. 2 to 5 (Chandrabhun Deb Barma, Devendra Deb Barma, Smti. Lampati Deb Barma and Smti. Dhana Lakshmi Deb Barma) for about 4 years, it must hare been easy fir them to identify the appellants. There is no reason why the P.Ws. concocted a place story against the appellants.
15. It was contended by the appellant's Counsel that Ext. P-1 was fabricated, because it reached the Section D.M.'s Court on 25.1.1964. Ext. P. 1 was recorded at 8 P.M on 22.1.1964. The learned Public Prosecutor stated that Teliamura Police Station is far away from the S.D.M's Court in Khowai and that, therefore, there was delay on the part of P.W. 18 in Bending Ext P-1 to the S.D.M's Court. But, at least it should have reached the S.D.M. on 23rd or 24th. So, there is no doubt that there was delay. But, as Ext. P 1 F.I.R. was lodged on the very next day namely, 22.1.1984 the delay and the laches on the part of P.W. 18 the investigating officer in sending it to the S.D.M.'s Court, cannot in the light of the facts of this case be and to be fatal to the prosecution case, though P.W. 18's work calls for adverse comment.
16. It is another factor, which shows that the first appellant was one of the dacoits. P.W. 17 the Medical Officer examined the Brit appellant on 24.1.1964. He found a out injury 3' ' ' on the web of the right thumb and the index finger., According to the opinion of P.W. 17 the injury was about 2 or 3 days old. The evidence of P.W. 6 (Sobha Chandra Deb Barma) is that he caused one injury to one of the dacoits and that his daughter (Might) also caused another injury to a dacoit with a dao. No doubt in the Croat-examination, he deposed that he could not state whether he caused the injury to the first appalling. He deposed before the Committing Magistrate that he caused the injury to one of the dacoits on the shoulder. The contention of the appellants counsel is that if the evidence of P.W. 6 (Sobha Chandra Deb Barma) that he caused an injury is true, then there might have been an injury on the shoulder of the first appellant, but that it was found on the web of the right thumb of the index finger. Still, there is the evidence of P.W. 6 (Sobha Chandra Deb Barma) that his daughter (Maghti) also caused an injury to one of the dacoits. The learned Public Prosecutor field that when the first appellant raised his hand to ward off the blow, he must hive received it on the hand and rot on the shoulder. The presence of the injury on the body of the first appellant would not by itself prove that he was ore of the dacoits. But. his explanation as to why he received the injury is not believable. His statement is that he re, ceiled the injury about 14 or 15 days prior to the incident when he was working in his 'jhum'. This is contradicted by the evidence of P.W. 17 the Medical Officer, who stated that the injury I was only about 2 or 3 days old when he examined it. So, the injury on the body of the first appellant was a recent one which he must have c received on or about 21.1.1964. Thus the evidence of the eye witnesses P.Ws 2, 4, 5 and 6 (Chandradhan Deb Barma, Smt. Lampati Deb Barma, Smt. Dhana Lakshmi Deb Sobha Chandra Deb Barma) that they identified the first appellant among the dacoits is rendered highly probable by the presence of an injury on the body of the first appellant. Which he received it on or about same time. As such, the presence of the injury on the body of the first appellant probabilises the case of the prosecution.
17. The denial of the appellants having committed the offence is, therefore, in view of the above direct and circumstantial evidence not believable.
18. The learned Sessions Judge found the appellants guilty of the offence only under Section 395, I.P.C. and awarded them imprisonment for 2 years each on the ground that the appellants were in jail for more than 3 years.
19. Thus, there are no merits in the appeal and it is accordingly dismissed.