Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.172 of 1999 =========================================================== Shambhu Ghosh, Son of Lakhi Kant Ghosh, Resident of Village-Kazipur, P.S.Kadamkuan, Patna-3, at Present residing at Mohalla, Machua Toli, Kadam- Kuan, Patna-3. .... .... Appellant Versus State Of Bihar .... .... Respondent =========================================================== Appearance : For the Appellant : Mr. Baban Sharma, with Mr. Ram Swarup Prasad, Advocates. For the Respondent : Mr. S.N.Prasad, A.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT Date: 16-07-2012 The instant appeal is directed against the judgment of conviction dated 19.04.1999, and order of sentence dated 21.04.1999, passed by the learned Additional Sessions Judge-XI, Patna, in Sessions Trial No.157 of 1987, by which the appellant has been convicted for the offence punishable under [STATUTE] and sentenced to undergo rigorous imprisonment for seven years. 2. The prosecution case is based on the fardbeyan of P.W.5 Priya Ranjan Prasad which was recorded by P.W.6 S.I. Birendra Prasad Verma of Kadamkuan police station in Patna Medical College Hospital, Rajendra Surgical Ward, on 21.09.1986 at 2 p.m. In the fardbeyan, the informant states that on 21.09.1986 at about 11.45 a.m. he came out of his cut piece cloth shop situated at Thakurbari Patna High Court CR. APP (SJ) No.172 of 1999 dt.16-07-2012 2 Park Road on hearing a sound of firing. He saw three persons coming out of his elder brother’s cut piece cloth shop situated adjacent east to his shop. Two of them fled towards the west, out of whom one was armed with pistol and the third one tried to escape riding on a bicycle towards east. The further case of the informant is that he came to the shop of his brother Niranjan Prasad and found him lying on the floor of his shop in a pool of blood. He raised shouting upon which one Mohammad Alam, proprietor of Raj Saree Centre and some other shopkeepers of the locality apprehended the person trying to escape riding on his bicycle. The person apprehended disclosed his name as Shambhu Ghosh(appellant). He also disclosed the name of two other persons who managed to escape as Dhirendra Kahar and Fukan. He further disclosed that two other persons, namely, Satyendra Singh @ Pappu and Baban Singh, at the relevant time were standing outside the shop at the time of occurrence. In the fardbeyan, the informant further alleges that the appellant confessed that the aforesaid five miscreants conspired together at Lohanipur and decided to commit loot in the cut piece cloth shop of his brother Niranjan Prasad. Three of them entered inside his shop. They selected and collected cloths and when Niranjan Prasad demanded for the price of the cloth, one of the miscreant, namely, Fukan took out pistol and another miscreant Dhirendra picked up the cloths, upon which, Niranjan Prasad caught Patna High Court CR. APP (SJ) No.172 of 1999 dt.16-07-2012 3 hold of Dhirendra but in the meantime Fukan fired from a close range as a result of which Niranjan Prasad sustained injury and fell down on the ground. The informant further states in the fardbeyan that the injured was thereafter taken to Patna Medical College Hospital but he succumbed to the injury. 3. On the basis of the fardbeyan of the informant Kadamkuan P.S.Case No.567 of 1986 was registered under [STATUTE] at 3.30 p.m. on 21.09.1986 against five miscreants including the appellant. 4. It is relevant to note it here that on the same day at 2 p.m. one B.B.Singh, Sub-Inspector of Police of Pirbahore police station prepared the inquest report of the deceased at Patna Medical College Hospital, Surgical Emergency. P.W.1 Mohammad Alam and P.W.2 Ramaand Kesari are witnesses to the inquest report. The dead body of the deceased was thereafter sent for postmortem examination by the Sub-Inspector of Police of Pirbahore police station and on 21.09.1986 itself at 4.30 p.m. The postmortem examination on the dead body of the deceased was conducted by court witness no.1 Dr. Ratnakar Prasad Srivastava. The investigating officer of the case submitted chargesheet under [STATUTE] against the appellant and two others and kept the investigation open with respect to involvement of other accused persons in the alleged Patna High Court CR. APP (SJ) No.172 of 1999 dt.16-07-2012 4 offence. The learned Chief Judicial Magistrate took cognizance of the offence and committed the case to the court of Sessions for trial. The trial court framed charge against the appellant and two others under [STATUTE] to which they did not plead guilty and thus the trial commenced. 5. In order to prove the charge, the prosecution has examined altogether seven witnesses. The doctor who conducted the postmortem examination on the dead body of the deceased has been examined as a court witness. 6. P.W.1 Mohammad Alam who is also a witness to the inquest report has been declared hostile by the prosecution. P.W.2 Ramanand Keshari is another shopkeeper of the locality. P.W.3 Awadhesh Prasad and P.W.4 Omprakash Keshari are chance witness. P.W.5 Chitranjan Prasad is brother of the informant as well as the deceased and P.W.6 is the informant of the case. P.W.7 is the investigating officer of the case. 7. P.W.7 the informant while deposing in court, in his examination-in-chief, reiterates the story narrated in the fardbeyan. He has been cross-examined at length. In cross- examination he admits that he came out of his shop on hearing sound of firing. By the time, he came out, no other person had come out on the road. He saw persons fleeing away towards west whereas the Patna High Court CR. APP (SJ) No.172 of 1999 dt.16-07-2012 5 appellant who was moving towards east riding on his motorcycle was apprehended by 5-6 persons. He admits that w

Applicable IPC Section: 392

Statute Text:
Section 392 of the Indian Penal Code. Robbery. Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.