JUDGMENT :

Sanjay Kumar Medhi, J.

1. This appeal is preferred from Jail against a judgment dated 20.01.2018, passed by the learned Sessions Judge, Diphu, Karbi Anglong District in Sessions Case No. 02/1993(Old)/353/2017 (New). By the impugned judgment, the accused appellant has been convicted under Section 396 of the Indian Penal Code and is sentenced to undergo Rigorous Imprisonment for life and to pay a fine of Rs. 2,000/- (Rupees two thousand) only, in default, Simple Imprisonment for 6 (six) months.

2. We have heard Ms. S. Bhuyan, learned Amicus Curiae appearing on behalf of the appellant and Ms. S. Jahan, learned Additional Public Prosecutor, representing the State of Assam.

3. The background facts of the case may be stated in brief as follows.

4. An Ejahar was lodged in the Bokoliyaghat Police Out Post, in the District of Karbi Anglong on 02.10.1989 by one Shri Ram Asish Chouhan (P.W. 3), alleging, inter alia, that on the previous night, a group of about 10/11 dacoits, armed with weapons, had assaulted him, his father and other members of the family, causing grievous injuries. Thereafter, the said dacoits had shot dead his father Shri Sumer Chouhan with a gun. The dacoits, after entering the house by breaking open the door of the house, looted many items and the informant could recognise 3 (three) of the dacoits including the present appellant Shri Dharmeswar Bora (Bhaity). The Ejahar was forward to the Howraghat Police Station and accordingly, the HGT P.S. Case No. 212/89, dated 02.10.1989 under Sections 396/397 of the IPC was registered. After investigation, the Charge-Sheet was submitted and the offence in question being Sessions triable, the case was committed to the Court of learned Sessions Judge, Diphu, Karbi Anglong District.

5. To bring home the accusation, the prosecution had examined as many as 12 (twelve) numbers of Prosecution Witnesses. At the time of commission of offence, the Judiciary in the District of Karbi Anglong was not separated and it was the Deputy Commissioner who acted as a District Judge. However, in the meantime, there was separation of Judiciary and the impugned judgment has been rendered by the learned Sessions Judge, Diphu, Karbi Anglong District.

6. It has been mentioned that during the course of investigation, a Confessional Statement of the accused appellant was recorded. The statements under Section 164 Cr.P.C. of Radhika Chouhan, Prabhawati Chouhan and Ramashis Chouhan, were also recorded.

7. P.W. 1, Kewla Devi, is an eye witness to the occurrence. As per her deposition, while she was sleeping inside the house and her husband, father-in-law and mother-in-law were sleeping outside, there was a 'Hulla', for which, she had come out and saw that about 10 (ten) persons had surrounded her father-in-law. When she has pleaded them not to beat him, they hit her 5 (five) times with a 'Lathi'. As the P.W. 1 was carrying a baby, she fled away from the scene. Subsequently, the dacoits had shot dead her father-in-law and amongst the dacoits, she could identify the present appellant, who was in the Court. She had elaborately stated that she could identify the present appellant as the dacoits were carrying and flashing the torch light and she had seen the present appellant in the village on earlier occasions. The dacoits had looted Cash and some other items including a Necklace. Though the said P.W. 1 was cross-examined, she stuck to her assertion that on the reflection of torch light, she could see the present appellant as he was carrying and flashing the torch light and had beaten her.

8. P.W. 2 is one Aanti Devi, who claims to be present at the time when the dacoits came and had also raised an alarm. The dacoits had hit her also, for which, she had fled away to call the other villagers. She heard a gunshot and saw that her husband was lying on the ground and that her sons were also beaten up. She however deposed that she could not identify any of the dacoits.

9. P.W. 3, Ram Ashish Chouhan, is the informant