Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Govt. Appeal (DB) No.31 of 1989 =================================================== This appeal is directed against the judgment of acquittal dated 17th April, 1989 passed by Sri Roop Chand, 2nd Additional Sessions Judge, Sitamarhi in Sessions Trial No. 34 of 1985 / 68 of 1988. =================================================== The State of Bihar…………………………………………..Appellant/s Versus 1. Awadh Sah son of Nandu Sah of village- Kacharipur, P.S.- Bajpatti, District- Sitamarhi (since dead) 2. Badri Mian Son of Subhan Mian 3. Nathuni Sah @ Gogharia Son of Aklu Sah, Both resident of village- Ratanpur, P.S.- Mejorganj, District- Sitamarhi 4. Ataur Rahman @ Moti Son of Nathuni Main of village- Ketharia, P.s.- dumra, District- Sitamarhi 5. Dukha Raui Son of Bilas Rai of village- Mahmda, P.S.- Bajpatti, District- Sitamarhi 6. Bacha Paswan son of Sukhai Paswan of village- Bhalhi, P.S.- Bathanaha, District- Sitamarhi 7. Nathuni Sah son of Kishuni Sah of village Basha P.S.- Bajpatti, District- Sitamarhi 8. Jigal Rai son of Parkash Rai of village- Basha P.S.- Bajpatti, District- Sitamarhi 9. Subh Narain Pathak son of Rajendra Pathak 10. Keilash Pathak son of Madhukant Pathak of village-Bhalhi, P.S.- Bathnaha, District- Sitamarhi .... .... Respondent/s =================================================== Appearance : For the Appellant/s : Mr. Ashwini Kumar Sinha, APP =================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) Date: 18-09-2012 Heard learned counsel for the appellant. No one Patna High Court G. APP. (DB) No.31 of 1989 dt.18-09-2012 2 appeared on behalf of the respondents. 2. Initially, this Government Appeal was filed against ten accused persons. This Court while granting leave to appeal on 22.8.1989 had refused the prayer to appeal against respondent nos. 9 and 10. Therefore, this Government Appeal remains against respondent nos. 1 to 8 only. 3. Execution report against respondent no. 1 Awadh Sah son of Nandu Sah of village Kacharipur, P.S.- Bajpatti, District- Sitamarhi returned with endorsement that he died. The appeal is now confined against respondent nos. 2 to 8 only. 4. This appeal is directed against the judgment of acquittal passed in Sessions Trial No. 34 of 1985 / 68 of 1988 on 17.4.1989 by the learned 2nd Additional Sessions Judge, Sitamarhi whereby the respondents were held not guilty under [STATUTE] . 5. The fard-beyan (Ext. 5) of the complainant (PW 9) Asheshwar Chaturbedi was to the effect that in the night of 12th/13th June, 1983 at 11.00 PM the complainant went to attend his natural call and as soon as he got up after discharging the natural call, then he saw 3-4 persons flashing the torch and they were suspected to be the members of Gram Raksha Dal. When the complainant wanted to know their identity, then they assaulted him with lathi. They took Patna High Court G. APP. (DB) No.31 of 1989 dt.18-09-2012 3 away the HMT watch and Rs. 235/- from his possession. His brother (PW 7) Rajendra Chaubey was also assaulted and key of the house was demanded. Shambhu Chaubey was also assaulted and after breaking the box by means of spade, accused persons took away rupees one thousand from the box. Utensils, clothes and other household articles were also taken away. After registration of the case, the investigation was carried into and after submission of chargesheet, cognizance was taken. The case was committed to the Court of Sessions where charge under [STATUTE] was framed and explained to the accused persons to which they pleaded their innocence and claimed to be tried. 6. In course of trial, the prosecution has examined Md. Mustaque (PW 1), Ramesh Chandra Mishra (PW 2), Ajay Kumar Sinha (PW 3), Bisheshwar Chaubey (PW 4), Kameshwar Chaubey (PW5), Upendra Chaubey (PW 6), Rajendra Chaubey (PW 7), Maheshwar Chaubey (PW 8), Asheshwar Chaturbedi (PW 9), Surender Chaubey (PW 10), Shambhu Saran Katiyar (PW 11), Dilip Kumar Sinha (PW 12), Obadur Rahman (PW 13), Binay Kumar Singh (PW 14), Washi Ahmad (PW 15) and Bishun Govind Roy (PW 16). 7. The defence has also examined Rajnandan Prasad Yadav (DW 1), Yogendra Pathak (DW 2), Surya Kant Jha (DW 3), Patna High Court G. APP. (DB) No.31 of 1989 dt.18-09-2012 4 Surya Narain Pathak (DW 4) and Jitendra Jha (DW 5). 8. The prosecution has exhibited seizure list (Ext. 1), signature of Mustaque on seizure list (Ext. 2), T. I. Chart (Ext. 3/2) and signature of Assistant Jailor on Ext. 3/2 (Ext. 4), T.I. Chart of articles (Ext. 3/3) and signature of Madan Prasad and Kedar Prasad on Ext. 3/3 (Ext. 4/1 & 4/2), another T.I. Chart (Ext. 3/4), Signature of Ganga Prasad (Ext. 4/3), fard-beyan (Ext. 5) and formal FIR (Ext. 5/1). 9. From the side of defence receipt granted by Dinesh Jha was exhibited as (Ext.A), licence no. 152 in the name of Dinesh Jha (Ext. B) and some paragraphs of the case diary (Exts. c, c/a and c/b). 10. Before the Trial Court, the witnesses were examined and their evidences were properly discussed. The Trial Court found that PWs 2, 3 and 12 stated that no effort was made to conceal the apparent marks or scar marks of the accused persons who were put on test identification parade. It was also noted that the alleged occurrence was in the night of 12/13th June, 1983. Accused Bachha Paswan was put on test identification parade on 8.10.1983 i.e. after 118 days of the alleged occurrence. Accused Jugal Rai and Lal Babu Paswan were put on test identification parade on 22.8.1983 after 71 days of the occurrence. Accused Awadh Sah, Nathuni Sah Patna High Court G. APP. (DB) No.31 of 1989 dt.18-09-2012 5 and Lalbaboo Thakur were put on test identification parade on 30th July, 1983. Badri Mian, Dukha Rai, Nathuni Sah and Moti Mian were put on test identification parade on 23.9.1983 i.e. after 103

Applicable IPC Section: 395

Statute Text:
Section 395 of the Indian Penal Code. Dacoity. Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.