Criminal Appeal No. 268 of 1992 With Criminal Appeal No. 276 of 1992 ----- Against the judgment and order of conviction dated 1.10.1992 passed by 4th Additional Sessions Judge, Samsatipur, in Sessions Trial No.274 of 1989. ----- 1. Shamim @ Hashim son of Late Abdul Hakim, Resident of village- Dal Danga, Chirkunda, District- Dhanbad. Appellant in Cr. Appeal 268/92 1. Sakil Amad son of Sultan Ibrahim, resident of village- Tal Donga, P.S. Chirkunda, District- Dhanbad. 2. Shafiullah @ Kallu son of Inamula Khan, resident of village-Taldanga, P.S. Chirkunda, District- Dhanbad. Appellants in Cr. Appeal 276/92 Versus The State Of Bihar Respondents in both appeals. ----- For the appellants : Mr. Vindhya Keshari Kumar, Sr. Advocate. For the State : Mr. S. N. Prasad, A.P.P. ----- P R E S E N T The Hon’ble Justice (Mrs.) Sheema Ali Khan ----- S. A. Khan, J. Both the appeals have been heard together and are being disposed of by this common judgment as both the appeals arise out of Sessions Trial No.274 of 1989. 2. Appellant Shamim @ Hasim is the appellant in Cr. Appeal No. 268 of 1992 and has been convicted under sections 395 and 397 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. Appellants Sakil Ahmad and Shafiullah @ Kallu are the appellants in Cr. Appeal No. 276 of 1992 and they have been convicted under section 412 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. 3. Fard-e-bayan of the Branch Manager of the Punjab National Bank, Pusa (Vaini), was recorded on 8.4.88 at 5.30 P.M. in which it is alleged that some miscreants entered the bank and one of them armed with pistol forced the - 2 - informant to open the strong room of the bank. It is alleged that cash of rupees four lacs and odd was looted away by the miscreants. The miscreants also assaulted bank staff while committing dacoity. One of the staff of the bank activated the siren, as a result of which, the police came at the place of occurrence and with the help of the villagers chased the miscreants and was able to apprehend Shyam kumar Khanna and Md. Shamim Khan (appellant). It is further alleged that from the possession of Shyam Kumar Khanna, one DBBL gun belonging to the Punjab National Bank along with the cartridges were recovered and from the possession of Md. Shamim Khan a pistol was recovered. 4. During the pendency of the trial, statement was made that appellant Shafiullah has died. This court by order dated 4.9.2008 called for a report from the Superintendent of Police, Dhanbad. The report of the Superintendent of Police, Dhanabad, indicates that there is no person by the name of Safiullah @ Kallu living in the village. 5. There are three sets of witnesses in this case. One set is the employee of the bank, second set of witnesses are of village Patsara from where accused Shyam Kumar Khanna and Md. Shamim Khan were arrested and DBBL gun belonging to the Punjab National Bank was recovered and the third set of witnesses are of village Saidpur from where accused Sakil Ahmad and Shafiullah @ Kallu were arrested with looted money, arms and ammunitions. 6. It appears that on 8.4.1988, A.S.I. Bachha Singh of Hatha Out Post and the Mukhiya of Patsara Panchayat and other villagers had arrested two persons i.e. Shyam Kumar Khanna and Md. Shamim. It has been argued and submitted on behalf of Md. Shamim that Mukhiya of Patsara Panchayat and A.S.I. Bachha Singh of Hatha Out post have not been examined in court to prove the fact that they were the persons who had apprehended appellant Md. Shamim and produced him before the Investigating Officer, P.W.27 Polindra Singh. It has - 3 - further been submitted that independent witnesses of seizure list showing recovery of a pistol from Md. Shamim have not been examined in court and, as such, it is submitted that as far as arrest and seizure is concerned, there is insufficient material to convict appellant Md. Shamim under section 395/397 of the Indian Penal Code. Besides this, all other villagers, who had allegedly chased the appellant Md. Shamim, have been declared hostile. 7. The aforesaid submission creates some doubt with respect to the manner in which the arrest was made. However, this court finds that the appellant Md. Shamim could not explain as to how he came to be in the company of accused Shyam Kumar Khanna, from whom DBBL gun belonging to the Punjab National Bank was recovered. If this is the position, this court finds that the appellant has rightly been convicted under section 395/397 of the Indian Penal Code. However, considering the fact that appellant Md. Shamim (Cr. Appeal No.268 of 1992) has remained in custody for over four years and that the occurrence took place on 8.4.1988, whereas, this appeal remained pending in this court since 1992, this court thinks that ends of justice would be met if the sentence of the appellant to undergo rigorous imprisonment for ten years is reduced to the period undergone with a fine of Rs.5,000/- to be realized by the trial court i.e. 4th Additional Sessions Judge, Samastipur, within a period of four months from the date on which notice is received by the appellant from the trial court. The amount of fine after realization should be deposited in the Patna High Court Legal Aid Committee. 8. Now, this court will consider the case of appellants Sakil Ahmad and Shafiullah @ Kallu (Cr. Appeal No. 276 of 1992). The material that has come against the appellants is that on 9.4.88 at about 6.00 AM while conducting raids two persons were chased by the police officials and were arrested near the house of Mukhiya of Saidpur. The arrested persons were Shafiullah and Sakil Ahmad. - 4 - The police officials recovered a bag containing currency notes of Rs.63,100/- with labels of the Punjab National Bank attached to them and five bullets of rifle from the possession of appellant Shafiullah. The police officials also recovered a bag containing currency notes Rs.1,23,460/- with seal and stamp of Punjab National Bank from the possession of Sakil Ahmad. Three bullets and a country made pistol with cartridges were also recovered from his possession. Seizure list was prepared which is marked as Exhibit-2 and 2/1. 9. On perusal of the evidence that has come on record, the only point that was raised on behalf of these two appellants was that there are contradictions in the evidence of P.W.7 and 8, the persons who had arrested these two appellants. It is also submitted that the seizure list witnesses have stated that the seizure list was not prepared in their presence although they have admitted that they had signed on the said seizure list. On perusal of the evidence of P.W.7 and 8, this court finds that contradictions are not vital and do not affect the prosecution case. The fact that recovery of money was made and the denomination number tallies with the list provided by the Punjab National Bank is a circumstance in favour of the prosecution and, as such, recovery can not be doubted although the procedure adopted by the prosecution in carrying out the seizure list may not be strictly in accordance with law. 10. These two appellants (Sakil Ahmad & Shafiullah @ Kallu) have remained in custody for about 4-1/2 years after their conviction in this appeal. The occurrence took place on 8.4.1988 i.e. more than twenty years ago and considering this aspect of the matter, this court although finds the appellants guilty under section 412 of the Indian Penal Code but reduces the sentence of ten years rigorous imprisonment into the period undergone in custody and further imposes a fine of Rs.5,000/- to be realized by the trial court i.e. 4th Additional sessions Judge, Samastipur, within a period of four months from the date on - 5 - which the appellants receive notice. The amount of fine after realization shall be deposited in the Patna High Court Legal Aid & Advice Committee by the trial court. 11. In the result, both the appeals are dismissed with modification in the sentence as aforesaid. (Sheema Ali Khan, J.) Patna High Court, Patna. Dated the 30th April, 2009. NAFR / JA/-