Crl.A. 394/2002 BEFORE THE HON’BLE MR JUSTICE HRISHIKESH ROY None appears for the appellant when the case is called. Mr.B.B. Gogoi, learned A ddl. PP appears for the State and rendered assistance to the Court in scrutinizi ng the evidence. 2. This appeal is presented to challenge the judgment and order dat ed 26.6.02 in Sessions Case No. 149(DMFT)/2001 rendered by the Adhoc Addl. Sessi ons Judge, Darrang, whereby the accused appellant is found guilty under Section 457 IPC and has been sentenced to 2 years R.I. and fine of Rs.1000/- and in defa ult, to undergo further imprisonment for 3 months. He has also been convicted un der Section 323 IPC and has been sentenced to 6 months imprisonment and fine of Rs.1000/- and in default, to undergo further imprisonment for 3 months. 3. The police case was set in motion by filing of an FIR on 14.3.94 by Smti. Soubhagya Mondal (PW-1) before the Officer-in-charge of the Udalguri P olice Station informing that on the previous night i.e. on 13.3.94 at about 10 P .M., two intruders had trespassed into their home carrying Lathi and sharp weapo n and started assaulting her husband and the informant’s plea to spare her husba nd was ignored. When the informant recognized, one of the assailants from the li ght of the torch carried by them as the accused Haren Mondal and called him out by name, the accused gave a blow on her head and ran out of her house. When the informant’s mother Koushalya Mondal (CW) also recognized the assailant, the accu sed Haren injured the said witness as well. The husband of the informant fell do wn and died at the spot after some time. 4. On receipt of the information, Udalguri P.S. Case No. 17/94 was registe red and after completion of the investigation charge sheet against the accused w as filed under Section 448/325/302/34 IPC. As it was a case of murder, the case was committed for trial to the learned Sessions Judge. 5. 8 witnesses were presented from the side of the prosecution wher eas defence produced 2 witnesses. The mother-in-law of the deceased Smti. Kousha lya Mondal was examined as a court witness. 6.1 PW-1, the wife of the deceased in her evidence clearly deposed t hat the accused Haren Mondal and another unknown intruder had assaulted her dece ased husband with lathi and sharp weapon and she recognized her nephew Haren Mon dal from the torchlight carried by the intruder. When she confronted the accused appellant by name after recognizing him, the witness too was given lathi blows by the accused. 6.2 CW is the mother in law of the deceased, who was present in the house on the night of the incident. She also confronted the accused appellant af ter recognizing him but the accused then gave lathi blows on her hands and the l eft leg while escaping. 6.3 The other witnesses i.e. PW-2, PW-3 and PW-4 were neighbours, wh o reached the place of occurrence on hearing commotion and these witnesses were reported at the spot by PW-1 that accused intruded into the house of the decease d and assaulted PW-1 and her husband. 7. By presenting the two defence witnesses, a plea of alibi was set up to contend that on the night of the incident the accused appellant was prese nt the entire night in the residence of DW-1 and, therefore, could not have been participating in the assault in the house of the deceased. 8. But on weighing the evidence of the witnesses from both sides, I am of the considered opinion that the evidence of the defence witness is not tr ustworthy as the independent evidence presented by the two eyewitnesses are corr oborated by the evidence of all the neighbourhood witnesses. That apart, in the FIR lodged soon after the incident, the name of the accused appellant was reveal ed as one of the two intruders, who made the assault on the deceased and other w itnesses. 9. The accused appellant was acquitted from the charge of murder on the evidence of the PW-1 that the accused appellant gave lathi blow and it is t he other intruder who gave dagger blow on the person of her husband. Accordingly , the Court held that the fatal incised wound on the chest of the deceased could not have been caused by the accused appellant with his lathi and since the deat h was occasioned by a sharp weapon injury, the charge under Section 302 was held to be not proved against the accused and the appellant was acquitted from the s aid charge. 10. Having regard to the medical evidence of the victim and evidence of PW-1 and CW, I am of the view that the accused appellant has been rightly fo und guilty under section 457 and 323 of the IPC. Accordingly, I see no merit in this appeal and the same is hereby dismissed. Since the accused has been granted bail by this Court on 22.11.02 in Crl. Misc. Appl. No. 316/02, now that the co nviction and sentence has been sustained, the accused is directed to surrender b efore the Court of the learned SDJM, Udalguri, within 60 days to serve out the r emainder of his sentence. 11. The LCRs be returned forthwith to the jurisdictional Court.