At, High Court of Bihar
By, THE HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA
For the Appearing Parties: A.H.M. Rahman, Sanjay Kumar Alias Manu, Sharat Prasad, Advocates.
(1.) THE above two appellants have preferred this appeal against the judgment of conviction and order of sentence dated 22-3-2004 and 26-3-2004 respectively passed by the 5th Additional Sessions judge, Rohtas at Sasaram in Sessions Trial no. 45 of 1988 whereby the appellants were found guilty for committing offence under section 395 of the Indian Penal Code and the appellant No. 1 Mundar Yadav was sentenced to undergo R. I. for seven years whereas the second appellant Chhabi Yadav was sentenced to undergo R. I. for ten years.
(2.) THE informant Bulaki Devi wife of asharfi Chaudhary
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has given her fard beyan before this Sub-Inspector of Tilauthu P. S. on 16-10-1983 that in the preceding night she and her nanand Munni Devi, Gotni kalawati Devi, Dewar Gandhraj and his wife munna Devi were sleeping inside the house and just past mid night dacoits entered into the house and they pressed dagger on the neck of P. W. 4. Two persons who were the appellants were identified as culprits. The appellant Mundar Yadav was asking about the ornaments. The informant and others were assaulted and on the threat and on force they took away a number of articles for which list was given. The case was registered. After investigation the police found the case to be true and submitted charge-sheet. The case was committed to the Court of Session after taking cognizance. The charges were explained to the accused. They pleaded innocence so the trial proceeded.
(3.) IN order to prove its charge the prosecution has examined altogether 8 witnesses. P. W. 1 is Kalawati Devi. P. W. 2 munna Devi, P. W. 3 Munni Devi, P. W. 4 candhraj Chaudhary, P. W. 5 Bulaki Devi, p. W. 6 Durga Ram, P. W. 7 Ramdeo Singh and P. W. 8 Prabhat Kumar Singh. P. W. 7 was the formal witness. The prosecution has examined FIR (Ext. 1) and statement under section 164, Cr. P. C. (Ext. 2) which was recorded by P. W. 8. The witnesses on behalf of the prosecution have stated about the factum of decoity and participation by the appellants. P. W. 1 in her statement has stated that she was sleeping inside the house along with other family inmates of the house who have been made as prosecution witnesses. In the meanwhile the appellants along with others entered into the house and at that time they were flashing torch and they identified them in the flash light of the torch. She has stated that the accused persons took away a number of articles and they also assaulted. On the source of identification she has stated that besides the torch light being flashed by the accused persons and the lantern was also giving light and there was also the moon light. So the means of identification were complete. She has been cross-examined by the defence on the factum of identification but the witness has supported the fact that the dacoits not only entered into the house rather they committed various overt acts including the assault and looting away all the articles. P. W. 20 is also the inmate of the house. She is the wife of P. W. 4 and she has given similar evidence that of P. W. 7. She has named the appellants as the persons who have participated in the offence of the dacoity. P. W. 3 has stated about the occurrence but has not identified any miscreants. P. W. 4 has also stated about the occurrence but has not identified the criminals. P. W. 5 has identified the appellants and she has stated that they also participated in the occurrence in which the articles were looted. P. W. 6 was a hostile witness.
(4.) IT has been argued by learned counsel for the appellant that their identification becomes doubtful-in view of the fact that the co-villagers and some of the inmates have not identified so identification becomes doubtful.
(5.) LEARNED APP submitted that the identification of the appellants is in the moon light and at that time the criminals were also flashing torch. It has also come in evidence that the lantern was also burning so means of identification was more than enough upon which identification can be made.
(6.) I have considered the submission and perused. The prosecution has been able to prove that in the night of 16-10-1983 a decoity was committed in the house of the informant in which these two appellants have participated. On this point there is consistent evidence. Therefore, i am not inclined to interfere with the findings of the trial Court and upheld the judgment of conviction passed by the trial Court.
(7.) ON the question of sentence it has been submitted that during trial the appellants were in custody for one year and at the time of judgment on 22-3-2004 the appellants were taken iato custody and they have completed four years even after the judgment. So the period undergone in custody by the appellants may be deemed to be sufficient for the ends of justice.
(8.) THIS is a case in which the prosecution has been also to prove its case and the circumstances in which the occurrence was committed shows that the appellants were determined to commit the offence, so in this case trial Court was justified in not granted the benefit of Section 360, Cr. P. C. or Probation of Offenders Act and the appellants deserves substantive punishment and accordingly they have given.
(9.) THE appellants have remained in custody for about five years and one of the appellants is aged about 60 years and another ,appellant is also of advanced age. Considering the facts available on the record I am inclined to modify the sentences awarded to the appellants and accordingly, the sentences awarded to the appellants is modified to the extent that the period undergone in custody by them shall be deemed to be sufficient for the ends of justice.
(10.) IN the result, judgment of conviction is upheld and with the aforesaid modification in the sentence this appeal is dismissed. The appellants are directed to be released forthwith from custody if not wanted in "any case. Appeal dismissed