IMPORTANT POINT
There is an error in law in treating the Postmortem Report as substantive evidence where it has not been proved by the doctor who conducted it without tendering in evidence under any of the relevant provisions of Ch. II of Evidence Act, 1872.

JUDGMENT

Jiteadra Nath Chaudhuri, J.-These two appeals being Crl. Appeal No. 421 of 1979 Gofur Sk. v. State and Criminal Appeal No. 495 of 1979 Panchanan Kahar alias Pacha Kahar v. State were heard together as they arose out of orders of conviction under Section 396 of the Indian Penal Code arid sentences of the imprisonment passed in Sessions Trial No.2 of July, 1979 by the Learned Additional Sessions Judge, Murshidabad.

2. Originally in that joint trial two other accused namely, Sohorab Sk. and Israfil Sk. were also charged under section 396 of the Indian Penal Code and one Dhiren Rajbansi and one Ainal Haque were charged each under Section 412 of the Indian Penal Code for possession of articles arising out of the dacoity Excepting the two present appellants all others have been acquitted of the respective charges leveled against them.

3. The charge against each of the present appellants reads as follows: "That you, on or about the 25th day of June. 1974 at village Kodla under P. S. Beshampore along with 20/22 persons committed dacoity at the house of Sudhir Chandra Mondal and that in the commission of such dacoity murder of Ananta Mondal was committed by one of your members and you thereby committed an offence of dacoity with murder punishable under Section 396 of the Indian Penal Code and within the cognizance of the Court of Sessions.

4. The prosecution called 20 witnesses. The defence did not call any witness. For the purpose of the present appeals P.W. 1 Sudhir Chandra, Mondal and P.W. 3 Ashima Mondal are the two eye witnesses who deposed and identified the two accused. P.W. 1 identifying the appellant Gofur Sk. and P.W. 3 identifying Panchanan alias Pacha respectively.

5. P.W.1 Sudhiy Chandra Mondal lodged the F.I.R. The incident is said to have occurred round about midnight of 25/26 June, 1974 in his house. The F.I.R. was lodged at 5-30 hours in the morning of 26-6-74 at the Police Station. It is the evidence of P.W.1 that round about midnight there was an armed dacoity in his house and he was beaten up the dacoits were carrying torch lights and were aimed with Jhabas and Tangis. In his view 20/25, dacoits a raided the house, some were keeping guard outside and the dacoits took away each, gold, utensils, cloths etc. The dacoity according to him continued for about an hour. In the light of the torches which the dacoits were focusing he could mark the features of some of the dacoits. In Court he identified the appellant Gofur Sk. and one Sohorab Sk. the acquitted accused as being among the dacoits in his room. According to his evidence the appellant Gofur Sk. was breaking open the wooden Sinduk and the acquitted accused Sohorab Sk. was moving about in the room where the witness was beaten up. It is his evidence that these dacoits were all unknown persons. The F.I.R. lodged by him was also lodged against unknown persons.

6. In cross-examination the defence suggestion that he knew Gafur Sk. From before the incident was denied by him. Similarly he denied the suggestion that the acquitted accused, Sohorab was known to him from be fore by name.

7. P.W.3 Ashima Mondal deposes that P.W. 1 is the husband of her mother's sister and that she was in his house on the relevant night sleeping in the same room with P.W. 2 Pratima Mondal and Sarama Mondal. She describes how on that night the dacoits broke open the door and entered with torch lights. They were focusing the beam of their torches in all directions and broke open the boxes. She identifies in Court the appellant Panchanan alias Pacha Kabar as being one of the dacoits it, that incident. According to her she noticed him at the time of the dacoity. He was standing in the verandah and was focusing the torch by calling other dacoits and arranging for leaving the house.

8. In cross-examination she frankly admits that some of the dacoits had covered their faces but denies the suggestion that she could not mark the features of any dacoits. It is her evidence that though it was a da