CRIMINAL APPEAL No.236 OF 1992 *** Against the judgment dated 18.9.1992 and order dated 21.9.1992 passed by Sri Sudarshan Upadhyay, Additional Sessions Judge, III, Nalanda at Biharsharif in Sessions Trial No.316 of 1990. *** 1. CHANDESHWAR PASWAN 2. DOMA BELDAR 3. xxx xxx xxx (Dead) 4. BADRI PASWAN 5. MAHENDRA KAHAR---------------------------------APPELLANTS Versus THE STATE OF BIHAR---------------------------------RESPONDENT *** For the Appellants :- Mr. Kalika Nandan & Mr. Bijay Kumar Pandey, Advocates For the State :- Mr. Jay Shankar Prasad Singh, Addl.P.P. *** P R E S E N T THE HON'BLE MR. JUSTICE SYED MOHAMMAD MAHFOOZ ALAM *** S.M.M.Alam, J. This Criminal Appeal is directed against the judgment dated 18.9.1992 and order dated 21.9.1992 passed by Sri Sudarshan Upadhyay, Additional Sessions Judge III, Nalanda at Biharsharif in Sessions Trial No. 316 of 1990 whereby he has been pleased to convict all the appellants (appellant no.3 Junaid Mian died during the pendency of this appeal and as such, his name was deleted) under Section 395 of the Indian Penal Code (hereinafter to be called as “I.P.C.”) and sentenced each of the appellants to undergo rigorous imprisonment for ten years each. The appellants; being aggrieved by the said judgment and order, have preferred this appeal. 2. The prosecution case, as per the fardbeyan (Ext.2) of Dr. Nezamuddin Ahmad recorded by Sub-Inspector of Police of Manpur Police Station, Sri R.C.Lohra on Ist February, 1990 at 2 12.30 hours, in brief, is that in between the night of 31st January, 1990 and 1st February, 1990, the informant Dr. Nezamuddin Ahmad (P.W.7) was sleeping in the outer room of his house situated at village Perhuka, P.S. Manpur District Nalanda. In the mid-night the dacoits started pushing the gate of his house and shouting loudly, they asked the informant to open the door. When the informant did not open the door, so the dacoits moved towards the main door of the house and started cutting the planks of the door with axe and after removing one of the planks of the door, the dacoits entered into the residential house of the informant and ransacked several rooms and took out clothes, Saree and box containing some papers, medical certificate of the informant besides other articles. The dacoits also tried to open the steel almirah kept in southern room of the house but they failed in their attempts. The dacoits took out one steel box and one leather suitcase containing Banarsi Saree, ornaments of gold and silver and other articles wroth Rs.30,000/- to 35000/- and thereafter they fled away with the booty. During the commission of dacoity, the informant did not come out of the room due to fear but from the ventilator of the room, he identified Chandeshwar Paswan, Surendra Paswan, Junaid Mian, Badri Dusadh and Mahendra Kahar amongst the dacoits in the flash of torch light of the dacoits. The informant raised hulla whereupon the villagers reached there and they chased the dacoits but the dacoits started firing from their rifles and guns and also exploded bombs and so the villagers could not continue to chase the dacoits and the dacoits succeeded in running away along with the looted articles. After running away of the dacoits, it was noticed that an axe and a cap of green-colour belonging to the dacoits were left in the courtyard of the house of the informant. On the next day the 3 police arrived at the P.O. house where Sub-Inspector of Police Sri R.C. Lohra recorded the fardbeyan of the informant. After recording the fardbeyan he sent the same to Manpur Police Station where on receipt of the fardbeyan, Manpur P.S. Case No.1 dated 1.2.1990 under Section 395 of the I.P.C. was instituted. However at the spot itself S.I. Sri Lohra took charge of investigation and after completing investigation he submitted charge sheet against the appellants and some other accused persons on the basis of which the learned Chief Judicial Magistrate, Nalanda took cognizance of the offence vide order dated 7.5.1990 and thereafter he committed the case to the Court of Session. Thereafter chare under Section 395 of the I.P.C. was framed against the appellants by Sri Sudarshan Upadhyay, Additional Sessions Judge III, Nalanda at Biharshariff. The appellants denied the charge and so, they were put on trial and by the impugned judgment they were convicted. 3. The defence case is that the appellants have been falsely implicated in this case due to previous enmity. 4. From perusal of the lower court records and the impugned judgment it appears that in order to prove its case, the prosecution has examined altogether eight witnesses, namely, Md.Kamruddin P.W.1, Janak Gope P.W.2, Md. Monajir Ahsan P.W.3, Amiruddin P.W.4, Md. Abu Jaffar Mallick P.W.5, Waris Ali P.W.6, Dr. Nezamuddin P.W.7 and Ram Charan Lohra P.W.8. Out of the abovesaid witnesses P.W.7 Dr. Nezamuddin is the informant of this case. P.Ws. 1 and 2 are co-villagers of the informant, P.W.3 Md. Monajir Ahsan is the witness of the seizure list and he is not on the point of occurrence. P.W.4 Amiruddin is a tendered witness. He has also not stated anything on the point occurrence. P.W.8 is the Investigating 4 Officer of this case and the rest witnesses are said to be the eye-witnesses of the occurrence. 5. From perusal of the judgment it appears that the learned trial court while coming to the conclusion that the appellants are guilty of the offence of dacoity, has placed reliance upon the evidence of P.Ws. 1, 2 5 and 6 who are said to be the eye-witnesses of the occurrence and whose houses are situated at a very close distance from the house of the informant. According to the finding of the trial court, the abovementioned witnesses have fully supported the prosecution case and corroborated the statement of P.W.7, the informant of this case on all the material points. In the following paragraphs, I would like to scrutinize the evidence of all the abovementioned witnesses along with the evidence of the informant. 6. First of all, I would like to incorporate the evidence of P.W.7, who is the informant of this case. His evidence is that in the night of the occurrence he was sleeping in a room of his Dalan which is just close to his residential house. Firstly, the dacoits knocked and pushed the door of the said room and asked the informant to open the door but the informant did not open the door and he raised alarm of Chor-Chor and then the dacoits moved towards the main door of the house and started cutting the planks of the door by axe. They succeeded in separating one of the planks and then they entered into the house and committed the dacoity. He has further deposed that he climbed on a chair and peeped outside from ventilator and in the torch light of the dacoits, he identified Chandeshwar Paswan, Surendra Paswan, Doma Beldar, Junaid Mian, Mahendra Kahar and Badri Pawan while they were retreating from his house after committing dacoity. He has further deposed that he raised 5 hulla upon which his co-villagers came there and saw the dacoits fleeing away. He saw the articles of the house scattered and one box broken. He has further deposed that the dacoits looted articles including ornaments amounting to Rs.30,000/-to 35,000/-. 7. It appears from the evidence of the informant that he has fully supported the factum of dacoity and the identification of the appellants amongst the dacoits in the flash of torch light of the dacoits. The factum of commission of dacoity in the house of the informant in the alleged night of the occurrence fully finds corroborated from the evidence of P.W.1 Md. Kamruddin, P.W.2 Janak Gope, P.W.5 Md. Abu Jaffar Mallick, P.W.6 Waris Ali and P.W.8 Ram Charan Lohra who is Investigating Officer of the case and who has deposed that after instituting the case he had investigated the case and during investigation the witnesses had supported the fact of dacoity committed in the house of the appellants. He has further deposed that during inspection of the place of occurrence he had found marks of violence at the entry door of the house of the informant caused by Kulhari as well as on the door of the room attached with the Dalan. He has further deposed that he had also found the marks of violence on the steel Almirrah. He has also deposed that he had found the broken box lying near the place of occurrence. He has further deposed that he also found the marks of explosion of bomb outside the house of the informant from which smell of explosive substance was coming out. He has further deposed that he had seized the residue of explosion of bomb as per the seizure list (Ext.5)and had also seized one Tangi and one woollen cap belonging to the dacoits as per seizure list (Exts. 5 and 5/1). Thus, the evidence of the abovesaid witnesses coupled with the evidence of the Investigating 6 officer fully establishes that on the alleged date of occurrence dacoity was committed in the house of the informant and it appears that this aspect of the case was not challenged by the defence. So, there remains only question to be decided as to whether there was sufficient evidence on record that the appellants were the dacoits who had committed dacoity in the house of the informant and the identification of the appellants by the witnesses amongst dacoits is worthy of reliance. I have already stated above that the informant has claimed to have identified Chandeshwar Paswan, Surendra Paswan, Doma Beldar, Junaid Mian, Mahandra Kahar and Badri Paswan. The evidence of P.W.1 shows that he has also claimed to have identified all the dacoits named by P.W.7, namely, Doma, Badri, Junaid, Mahendra, Surendra and Chandeshwar. The evidence of P.W.2 shows that he has also claimed to have identified all the abovenamed dacoits. The evidence of P.W.5 also shows that he has claimed to have identified all the abovementioned persons amongst the dacoits. Likewise, the evidence of P.w.6 shows that he has also claimed to have identified all the six persons amongst the dacoits but named only five except one Doma Beldar. Thus, from the evidence of the above said witnesses it appears that so far appellants Chandewar Paswan, Badri Paswa and Mhendra Kahar are concerned, there are five identification against them and so far as appellant Doma Beldar is concerned, there are four identifications against him. 8. It appears from the deposition of P.Ws. 1, 2, 5 and 6 that they are co-villagers of the informant and they all have got their houses adjacent to the house of informant and so they appear to be very competent witnesses on the point of factum of dacoity as well as identification of the accused persons. Their cross-examination shows that the defence has 7 failed to bring any reliable evidence on record with regard to fact that the informant or the witnesses were inimical with the accused persons and therefore, there is no reasonable ground to discard their evidence specially when they are most competent witnesses being the witnesses of the locality, I am, therefore, of the view that the learned trial court has rightly relied upon their testimony. Since there were four identifications against the appellant Doma Beldar and there were five identification against the rest appellants, therefore, I am of the view that there was sufficient evidence before the trial court to come to the conclusion that the appellants were the persons who had committed dacoity in the house of the informant in the alleged night of occurrence. In such view of the matter, I am of the view that the appellants have rightly been convicted for the offence under Section 395 of the I.P.C. 9. It has been submitted by the learned Advocate of the appellants that the fardbeyan of the informant was not the first information of the case as the evidence will show that prior to recording of the fardbeyan, the concerned police officer had instituted a station diary entry and so, the fardbeyan of the informant (Ext.2) cannot be treated as the first information report of this case. In support of his argument, the learned Advocate of the appellants has placed reliance upon the decision reported in 1994 Supp. (1) supreme Court Cases Page 590 (State of Andhra Pradesh, Appellant Vrs. Punati Ramulu and others, Respondents). I am of the view that the argument of the learned Advocate of the appellants is misconceived in view of the fact that there is nothing on record to show that the statement recorded in the alleged Sanha had contained all the ingredients of a cognizable offence. Unless it is shown that the alleged station diary 8 entry had contained statement showing disclosure of commission of a cognizable offence, the same cannot be treated as first information report. Since the defence has not asked for bringing the said station diary entry on record, as such I am of the view that at this stage this plea is not available to the appellants that the contents of the alleged station diary entry were different from the fardbeyan of the informant and so the same was intentionally withheld by the prosecution. Under the circumstances, I am of the view that the decision cited by the learned Advocate of the appellants is of no help to the appellants. 10. With regard to the quantum of punishment, the learned Advocate of the appellants argued that the punishment awarded by the learned trial court is very harsh and the learned trial court has awarded severe punishment by awarding sentence for a period of ten years. He submitted that in view of the fact that appellant no.1 Chandeshwar Paswan was aged about 61 years at the time of delivery of judgment and from that date period of 16 years has already passed (judgment was delivered on 18th September, 1992), now the said appellant has become very old approaching 77 years. Likewise, other appellants have also crossed 40 to 45 years and, therefore, keeping in mind the age of the appellants, their sentence should have been reduced. 11. There appears weight in the argument of the learned Advocate of the appellants as perusal of the judgment shows that at the time of delivery of the judgment, appellant no.1 Chandeshwar Paswan was aged about 61 years. It appears that this appeal is of the year 1992 and since that date about 16 years period has already elapsed. Due to the pendency of the appeal for a period of 16 years, there is every likelihood that the appellants might have remained under constant 9 anxiety. In such view of the matter, I am of the view that the punishment awarded by the trial court to undergo rigorous imprisonment for ten years should be reduced to rigorous imprisonment for five years. In the circumstances mentioned above, the conviction of the appellants under Section 395 of the I.P.C. is upheld but the sentence of rigorous imprisonment for ten years awarded to each of the appellants is reduced to five years and each of the appellants is sentenced to undergo rigorous imprisonment for five years under Section 395 of the I.P.C. instead of rigorous imprisonment for ten years. 12. In the result, this Criminal Appeal is dismissed and the judgment of the trial court is upheld with modification in the sentence as stated above. The appellants are on bail, as such their bail bonds are cancelled and they are directed to appear before the trial court to serve out the remaining part of the sentence. In case the appellants fail to surrender within a reasonable time, the trial court shall take necessary steps for their arrest or surrender. (Syed Md. Mahfooz Alam, J.) Patna High Court, Patna The 30th July, 2008 N.A.F.R. (B.T.)