Swapan Chandra Das, J.

1. The appellant, Manik Miah, named above, has been found guilty of committing offence punishable under Section 458 of IPC, by the learned Additional Sessions Judge (Fast Track Court), North Tripura, Kailashahar in ST 16(NT/K) of 2003 and sentenced him to suffer R.I. for 6(six) months and to pay a fine of Rs. 1000/- (Rupees one thousand) in default of payment of fine to suffer further R.I. for 2(two) months. Learned Additional Sessions Judge also directed the appellant to pay a compensation of Rs. 25,000/- (Rupees twenty five thousand) to the victims invoking the jurisdiction under Section 357(3) of CrPC. Being aggrieved and dissatisfied, the appellant preferred the appeal and prayed for setting aside the judgment and order of conviction and sentence.

2. Heard learned counsel, Mr. Arijit Bhowmik for the appellant and learned Addl. P.P., Mr. P. Bhattacharjee for the respondent.

3. Fact of the case may be summarised thus:-

3.1 On the intervening night of 14.1.2002 and 15.01.2002, Ashid Ali @ Ashique Ali (P.W.2) along with his wife, Aminur Necha (P.W. 4), their son Nurul Islam (P.W. 14) and daughter Rajina Begam (P.W.15) were sleeping in their residential hut and at that time miscreants broken open the door, trespassed in the hut armed with sharp cutting weapons and fire arms in hand and started physical assault on P.W.2 causing injury. When P.Ws 4 and 14 went to rescue P.W.2, they were also assaulted and one of the miscreants fired from a gun to which P.W. 14 received pellet injury in his abdomen. On the hue and cry raised by the inmates of the house, neighbored rushed there and the injured P.Ws 2, 4 and 14 were taken to RGM Hospital, Kailashahar.

3.2 On the following day, i.e. on 15.1.2002 at about 8-35 a.m., P.W.1 Rashid Ali, a brother of P.W.2, residing in the neighbourhood, lodged an FIR in writing addressed to O.C., Kailashahar P.S. narrating the occurrence that a group of dacoits numbering 6/7 armed with sharp weapons trespassed in the house of his brother Ashid Ali after pushing open the door of the hut and assaulted them with sharp weapon causing injury and also injured Nurul Islam with gunshots. In the FIR he has mentioned that the leader of said group of dacoits was one Munib Ali, S/o Akbar Ali of village Yubrajnagar.

3.3 O.C. of Kailashahar P.S. accordingly registered KLS P.S. Case No. 07/2002 under Sections 398/326 of IPC and Section 27 of the Arms Act and S.I. Swapan Chandra Das was entrusted with the charge of investigation who on completion of investigation, submitted charge sheet against accused Munib Ali (named in the FIR), Manik Miah, Ajijur Rahaman and Maharam Ali for commission offence punishable under Sections 398 and 326 IPC. Accused Munib Ali was charge-sheeted showing absconder.

3.4. Cognizance was taken on the basis of police report and in due course, on commitment of the case to the Court of Sessions, learned Additional Sessions Judge on 28.03.2003 framed charges against accused Manik Miah, Ajijur Rahaman and Maharam Ali for commission of offence punishable under Section 398 of IPC, Section 25(1)(a) and 27 of the Arms Act.

The accused persons pleaded not guilty to the charge. Charges so framed against the accused persons reads as follows:-

I, Shri M.C. Roy, Sessions Judge, North Tripura, Kailashahar, do hereby charge you, namely,

1. Md. Manik Miah

2. Md. Ajijur Rahaman

3. Md. Maharam Ali, as follows:-

Firstly. that, you along with absconder Md. Munib Ali and unknown 3/4 others at about 0200 hours at village Yeazikhawra under P.S. Kailashahar on 15.1.2002, while attempting to commit robbery or dacoity in the house of one Md. Asid Ali, used deadly weapons, to wit. Dao, Kirich and Gun etc. and caused grievous hurt to said Md. Asid Ali, his wife Musstt. Amirunnessa and his son Md. Nurul Islam and thereby committed an offence punishable under Section 398 of I.P.C. and within my cognizance.

Secondly, that you on the same time, date and place as referred in first charge, while committing the a