Criminal Appeal (SJ) No.215 of 1998 Against the judgment dated 17. 04. 1998 and order of Sentence dated 18. 04. 1998 passed by Shri Bidhu Bhushan Pathak, 3rd Additional Sessions Judge, Aurangabad, in Sessions Trial No. 224 of 1997/179 of 1997. Usman Mian, son of Late Sri Jumrati Mian, resident of Village- Labadna, Police Station- Obra, District-Aurangabad. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. For the Appellant. : Md. Gayasuddin Khan, Advocate. For the Respondent State : Mr. Parmeshwar Mehta, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for offence under Section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. 3. The prosecution case as alleged that on 18. 02. 1996, while the informant returned to the house then he heard alarm of dacoits raised by the brother and he though that probably dacoit came so he entered into his house and closed the main gate and in the meantime, one of the dacoit pointed gun on his chest and compelled to sit down and other dacoits started looting the articles. 4. On the basis of Fardbeyan, F.I.R. was lodged. 2 During investigation, appellant was apprehended and after T. I. Parade he was identified by the witnesses and after investigation, charge sheet submitted. Cognizance was taken and the case was committed to the Court of Sessions. Nine witnesses were examined on behalf of the prosecution. On considering the oral and documentary evidence, order of conviction and sentence recorded as stated above. 5. Learned counsel for the appellant, however, challenged the identification and participation of this appellant. The defence of the appellant is that appellant is a vegetable vendor and prosecution party took away one maund of onion from his shop and when the money for one maund of onion was not paid then appellant demanded the amount. So appellant has falsely been implicated. It has further been asserted that the appellant had pox face and the appellant remanded in this case on 17. 06. 1996 and produced in the court on 18. 06. 1996, but Test Identification Parade was conducted on 11. 07. 1996. 6. The witnesses have supported the prosecution case about implication of the appellant in committing dacoity and involvement of the appellant. Two witnesses P.W. 1 and 6 have identified the appellant. P.W. 1 the 3 person identified pox face and has stated that one of the dacoit was going in and out having pox face was identified by face. He also identified the appellant in T.I.P. as well as in court. P.W. 6 has also stated that dacoits came looted articles and has stated that one of the dacoit present in court was taking articles in a gunny bag. He has also identified the appellant in court as well as in T.I.P. conducted by the Judicial Magistrate. 7. P.W. 10 is the Judicial Magistrate, who conducted the T.I.P. and he has also stated in his cross- examination that appellant had pox face and has ceast on his head and was bold headed and has stated that he took care and put the person having similar structure and face in T.I.P. and has stated that he written T.I.P. chart when he conducted T.I.P. 8. However, I.O. in his evidence in para 6 has stated that he arrested Usman Mian on suspicion as per disclosure of the description of face and physical feature by witness and put on T.I.P 9. The witnesses have supported the prosecution case about dacoity. Hence prosecution has proved the case about dacoity and identification of this appellant beyond reasonable doubt. Hence, I do not find any merit to 4 interfere to the order of conviction recorded by the lower court. 10. However, learned counsel for the appellant however, submitted that at the time of occurrence the appellant was 55 years as per assessed the age by the Additional Sessions Judge and the occurrence is of the year 1996 and fifteen years has already been elapsed and hence the appellant is now aged about 70 years old. The appellant remained in jail for three years and no useful purpose by sending the appellant to jail. 10. Hence taking into consideration the facts and circumstances the appellant is order for release for the period already undergone subject to payment of fine of Rs. 10,000/- (Ten thousand) within three months. However, if the amount not paid within three months this order shall not be effective on sentence rather the order of conviction and sentence by lower court shall be maintained. Patna High Court The 28th July, 2011. NAFR/m.p. ( Gopal Prasad, J.)