V. Dutta Gyani, C. J. (Acting) —

This appeal against acquittal under section 378 (1) (3) CrPC is directed against the judgment and order of acqittal dated 29.6.90 as passed by learned Sessions Judge, Nagaon in Session Case No. 122(NH)/85, thereby acquitting the accused respondents of offences punishable under sections 395, 396 and 397 IPC and section 302 read with section 34IPC, giving them the benefit of doubt. Aggrieved by the same the State has preferred this appeal.

2. Briefly stated the prosecution case was that on the night, intervening 7th and 8th of May, 1981, the accused respondents broke open the door of the house of Md Abdul Khaleque and assaulted him with lathis and dagger. Md Abdul Khaleque succumbed to the injuries almost instantaneously and died on the spot. Thereafter, the complainants Md Abdul Latif’s mother, sisters and brothers were tied with rope and assaulted. These miscreants decamped with cash, gold ornaments and other valuables, such as, wrist watch, ear-rings, radio as can be seen from the first information report, Ext 1. Dacoity with murder was committed as a sequal. The deceased Md Abdul Khaleque has testified against the accuseds in a criminal case and was

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