IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.1017 of 2007 - - - - Against the judgment of conviction and order of sentence dated 15.9.2007 and 17.9.200, respectively, passed by Additional Sessions Judge, Fast Track Court-V, Sheikhpura, in Sessions Trial No. 222 of 2007. ========================================================== 1. Akhtar Nutt, son of Sakuri Nutt, resident of Village Rajabigha, Sakrama, P.S. Asthawan, District Nalanda 2. Bachu Nutt, son of late Banwari Nutt, resident of Village Masidpur, P.S.Asthawan, District Nalanda 3. Subodh Nutt, son of Lala Nutt, resident of Village Rajabigha, P.S.Asthawan, District Nalanda 4. Suresh Nutt, son of Rameshwar Nutt, resident of Village Masidpur, P.S. Asthawan, District Nalanda . .. .... Appellants Versus The State of Bihar .... .... Respondent ========================================================== Appearance : For the Appellants : Shri Ashwini Kumar Sinha, Adv. For the Respondent : Shri Ajay Mishra, A.P.P. ========================================================== CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA ORAL JUDGMENT (Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA) - - - - The present appeal on behalf of the four appellants is directed against the judgment dated 15.9.2007 passed by Fast Track Court-V, Sheikhpura, in Sessions Trial No. 222 of 2007 by which appellants Aktar Nutt and Bachu Nutt were convicted under Sections 394 and 397 of the Indian Penal Code and Secretions 25(1-B)(a), 26(1) and 27 of the Arms Act. So far as appellants Suresh Nutt and Subodh Nutt are concerned, they were also convicted under Sections 394/411 of the Indian Penal Code and Sections 25(1-B)(a), 26(1), 27, 25(1-b)(a) read with Section 35 of the Arms Act. On 17.9.2007 after hearing on sentence, the learned trial Judge directed appellants, Aktar Nutt and Bachu Nutt to suffer rigorous imprisonment for ten years under Sections 394/397 of the Penal Code as also rigorous 2 imprisonment for three years under each of the counts under Sections 25(1-B)(a), 26(1) and 27 of the Arms. As regards appellants Suresh Nutt and Subodh Nutt, they were also directed to suffer rigorous imprisonment for five years and rigorous imprisonment for three years, respectively, under Sections 394 and 411 of the Penal Code as also rigorous imprisonment for three years under each of the counts of Sections 25(1- B)(a), 26(1) read with Section 35 of the Arms Act. The sentences inflicted upon each of the appellants, however, were directed to run concurrently. 2. The prosecution case is based on the written report(Ext.2) of Rajdeo Prasad,( P.W.1), who stated that while he along with some police personnel was at the Police Station he received an information that some criminals had committed robbery at a place 1 K.M. away from the Police Station and during that course they had fired at the victims also. Accordingly, the witnesses and P.W.1 started for the place of occurrence and when they came to the bridge situated at the canal, they found Mathura Mali( P.W. 2), Sudama Manjhi( not examined), Rajaram Sharma(not examined), Daya Nand Singh( P.W.7) and Umesh Singh( not examined) who pointed out to him that four criminals, out of whom two were armed with pistols and the other two were armed with lathi, surrounded them and robbed them after having assaulted them as a result of which Mathura Mali, Sudama Manjhi( not examined) and Umesh Singh were injured. The informant further stated that the above witnesses had pointed out the direction in which the criminals had fled into. 3. The informant stated that when he proceeded towards the direction pointed out by above named witnesses and reached south of village Ambari at Sheikhopur Sarai-Barbigha Road, other set of persons, like, Suresh Prasad(P.W. 6) and Naresh Prasad( P.W.5) both residents of 3 Village Ambari came and narrated the same facts of being robbed of an eEeready torch and Rs. 250/-. The informant stated that the villagers also accompanied him and he started for village Masidpur along with the police force, when he heard the sound of firing coming from the sugarcane field as a result of which the informant also ordered his accompanying police force to fire one shot. As soon as the shot was fired by the police, two persons came out of the sugarcane field and started running away towards north and they were chased and arrested. They were found in possession of country made pistols and on questioning they pointed out their names as Aktar Nutt and Bachu Nutt. They further pointed out the names of their remaining two companions who were still concealing in the sugarcane field as a result of which he and the police force cordoned off the field and two persons were arrested from there who were appellant Subodh Nutt and Suresh Nutt and from their possession different looted articles, like, the torch, bank passbooks, watches, mobile charger, ring, sari, bag and Rs. 250/- in cash were recovered and, accordingly, seizure memo( Ext. 1) was prepared. From the possession of appellant Aktar Nutt and Bachu Nutt who had been arrested first by the police, some cartridges were also recovered from their pockets. The informant, thereafter, presented his report on the basis of which the F.I.R.(Ext. 3) of the case was registered and the investigation was handed over to A.S.I. Ram Binod Thakur( P.W. 11) who examined the witnesses and after completing the investigating submitted charge sheet which, ultimately, ended in conviction and sentence of the appellants as indicated earlier. 4. Besides P.W.1, the informant, the witnesses, like Mathura Mali(P.W. 2), Naresh Prasad( P.W.5), Suresh Prasad(P.W.6) and P.W.7 Daya Nand Singh who were injured and looted have also supported the 4 allegation that it were the four appellants who committed the offence of robbery at gun point. P.Ws. 3 and 4 have also supported the occurrence as narrated by P. Ws. 2,3,5 and 6. Ishwar Chandra Shrma is the Block Development Officer in whose presence the Test Identification Parade of articles was organized and each and every article was identified by their respective claimants and T.I. Chart was issued which has been marked Exts. 6/A to 6/D. Not only that, the injury reports of various injurd were also proved by P.W. 10 Dr.Sanjeev Kumar who stated that he had examined Suresh Prasad( P.W. 6) Mathura Mali (P.W. 2), Sudama Manjhi( not examined) and he also examined appellant Aktar Nutt. It is the basic case of the prosecution that the appellant Aktar Nutt was arrested with injury. Thus, what I find from the discussion of evidence is that the prosecution had succeeded in proving the charges. The court below has convicted appellants Aktar Nutt and Bachu Nutt under Sections 394/397 of the Penal Code also. The evidence on recorded indicated that the criminals had used deadly weapons and, thereby, had caused injury to different persons who were examined by P.W. 10, the Doctor. 5. Appellants Suresh Nutt and Subodh Nutt have been convicted under Sections 394/411 of the Penal Code and have been directed to suffer rigorous imprisonment for five years and three years, respectively, under both the counts whereas appellants Aktar Nutt and Bachu Nutt have been convicted under Sections 394 and 397 of the Penal Code and have been directed to suffer rigorous imprisonment for ten years. The evidence on record indicated that the allegations were similarly appearing against all the appellants and the sentences appear differently inflicted upon the two sets of the appellants for the offence under Section 394 of the Penal Code. It does not appear uniform. As such, the sentence of rigorous 5 imprisonment for ten years passed upon appellants Aktar Nutt and Bachu Nutt is reduced to rigorous imprisonment for five years. So far as the sentence passed against appellants Subodh Nutt and Suresh Nutt is concerned, they have also been sentenced to rigorous imprisonment for five years and that is the reason that I have reduced the sentence of appellants Aktar Nutt and Bachu Nutt. So far as conviction of these two appellants under various Sections of the Arms Act is concerned, there is no evidence indicating as to who had used what weapon. In that view of the matter the conviction of the appellants under Section 27 of the Arms Act appears quite illegal and that conviction and sentence which have been passed against any of the two appellants are hereby set aside. 6. Likewise, the conviction of appellants Suresh Nutt and Subodh Nutt for committing offences under Section 27 of the Arms Act appears not justified because no firearms were recovered from their possession. It is true that arms had been used by any of the four appellants in commission of the offence. As such, their conviction under Sections 25(1- B)(a), 26(1) read with Section 35 of the Arms Act is left undisturbed. I further find that after convicting the above two appellants under Section 394 of the Indian Penal Code the court below also went on to convict the two appellants, namely, Suresh Nutt and Subodh Nutt also for committing offence under Section 411 of the Indian Penal Code. The law is trite that an accused might be convicted for committing the offence under Section 411 of the I.P.C. and the conviction might be there for retaining or receiving the property known to him to be stolen property but when the same has been recovered from the possession of the accused who had himself committed the offence then the law is rife that there could be no substantive sentence inflicted upon such an accused. In that view of the 6 matter, the conviction of the appellants Suresh Nutt and Subodh Nutt under Section 411 of the Indian Penal Code might be justified but passing of sentence to suffer rigorous imprisonment for three years again appears not sustainable. In that view, the sentence passed upon appellants Suresh Nutt and Subodh Nutt is also set aside. 7. Thus, while upholding the conviction of the appellants under Sections 394 of the Indian Penal Code, I direct appellants Aktar Nutt and Bachu Nutt to suffer rigorous imprisonment for five years. I, further direct the appellants to suffer rigorous imprisonment for three years for their conviction under Sections 25(1-B)(a) and 26(1) read with Section 35 of the Arms Act. The sentences shall run concurrently. 8. With the above modification in sentence, the appeal stands dismissed. 9. Appellants Suresh Nutt and Subodh Nutt, are on bail. Their bonds are cancelled and they are directed to surrender before the court below to serve out the remaining period of sentences. ( Dharnidhar Jha, J.) Patna High Court The 23rd August, 2011 Kanth/N.A.F.R.