Criminal Appeal (SJ) No.119 of 1996 **** Against the judgment, dated 16th day of July, 1996, passed by the Additional Sessions Judge, XI, Patna, in S. Tr. No. 510 of 1994/58 of 1994 **** Suresh Sao, son of Sri Kedar Sao, resident of Moh. Chiryantar, P.S. Jakkanpur, district Patna .. Appellant Versus The State of Bihar .. Respondent **** For the appellant .. Mr. Jeetendra Narayan, Adv. as amicus curiae For the State .. Mr. Sujit Kumar Singh, A.P.P. **** P R E S E N T THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. On repeated calls, no one appeared on behalf of the appellant. 2. Mr. Jitendra Narayan, Advocate, appeared and prays that he may be permitted to appear as amicus curiae in this appeal. Prayer is allowed. 3. Appellant is convicted under Section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years. 2 4. Prosecution case, as alleged, is that while the informant, Md. Nayeem Ahmad, Commercial Clerk of Patna Junction Railway Station while going with the sale proceeds of Karbigahia Railway Station’s booking counter amounting to Rs.21,794/- in a hand bag along with two Railway Protection Force personnel on 25.10.1993 at 00.15 hours then he was apprehended by five persons. Out of five, two persons, each from both sides pointed pistols to the two Railway Protection Force Constables and one threatened the informant to give the bag. The informant, however, flee away with the bag and then one of the accused chased with the pistol with a threat to him and snatched the bag from the informant. 5. On the fardbeyan of the informant the first information report was lodged, charge sheet submitted and after submission of the charge sheet cognizance taken and case was tried and during the trial five witnesses were examined out of which P.Ws. 1 and 2 are Railway Protection Force Constables, P.W. 3 is the informant, P.W. 4 is the investigating officer and P.W. 5 is the Judicial Magistrate, who conducted the Test Identification Parade and after considering the oral and documentary evidence the judgment of conviction and order of sentence was recorded. 6. When the appeal was taken up no one appeared on behalf of the appellant and, hence, the amicus curia appointed. 3 7. The learned counsel appearing as amicus curiae, however, contends that the informant of the case has not been identified the appellant and the identification of appellant by P.Ws. 1 and 2 is not a reliable indemnification as they might have seen the appellant at Police Station when the appellant was apprehended. 8. The learned counsel for the State, however, opposed and contended that there is nothing to suggest that there is any infirmity in prosecution case and prosecution evidence and no circumstance pointed out to suggest infirmity in identification of the appellant. 9. The learned counsel appearing as amicus curiae, however, contended that having regard to the fact that occurrence is of the year 1993 and seventeen years have already elapsed, hence, a lenient view may be taken regarding the sentence as the appellant was already in jail for three years and suffered the agony during the pendency of the appeal. 10. Having regard to the prosecution case that five persons have been apprehended and two accused from both sides pointed pistols and fifth chased the informant to snatch the bag. However, during the evidence P.Ws. 1, 2 and 3 have supported the prosecution case and P.Ws. 1 and 2 have identified the appellant in Court and they have also proved their participation in the Test Identification Parade where they identified the accused person, Test Identification Parade chart has been 4 proved as Exhibit 4 and the investigating officer and Judicial Magistrate have supported the Test Identification Parade, hence, taking into consideration the entire facts I do not find any merit regarding the order of conviction recorded by the learned trial Court. 11. However, taking into consideration the fact that the occurrence is of the year 1993 and the appellant suffered the trial and appeal for seventeen years and, since, the appellant has already remained in jail for more than three years as apparent from the order sheet, dated 18.09.1996, hence, the order of sentence is modified to the extent to the period already undergone and, hence, with this modification in sentence the appeal is hereby dismissed. ( Gopal Prasad, J. ) The Patna High Court, The 22nd day of June, 2011, N.A.F.R., S.A.