Criminal Appeal (SJ) No.148 of 1994 **** Against the judgment, dated 10.05.1994, passed by Shri Chandra Mohan Prasad, Additional Sessions Judge, II, Nalanda at Biharsharif, in S. Tr. No. 288 of 1993/40 of 1993 **** Kamruddin Mian @ Kamru Mian, son of Anis Miya, resident of Mohalla Gagan Diwan, P.S. Murarpur, district Nalanda .. Appellant Versus The State of Bihar .. Respondent **** For the Appellant .. M/S Ashutosh Kumar & Nachiketa Jha, Advs. For the Respondent .. Mr. Parmeshwar Mehta, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and the State. 2. The appellant has been convicted for offence under Section 395 of the Penal Code and sentenced to undergo rigorous imprisonment for seven years. 3. The prosecution case, as alleged in the fardbeyan of the informant, Lalti Devi, wife of Md. Shahid Mian that while in the night at about 07.30 p.m. while they were watching television, her 2 husband disclosed that thieves have entered into the house. In the meantime, the thieves entered into the house after broking open the gate and, thereafter, the dacoits broke open the ventilator and at the point of gun asked the informant to open the room and, thereafter, looted articles and jewelleries on her person and from the person of the daughter of the informant and the grand daughter as well as also took away other articles like clothes television etc. It has also been asserted that they have identified three persons including the appellant and has specifically stated that one Matin was armed with gun and Suresh was armed with lathi. 4. On the fardbeyan, the first information report lodged and after investigation charge sheet submitted. 5. During the trial six witnesses have been examined. P.W. 1 is the husband of the informant, P.W. 2 is the daughter of the informant, P.W. 3 is the grand daughter of the informant, P.W. 4 is the informant, P.W. 5 is the investigating officer and P.W. 6 is the doctor, who examined the injured. 6. The trial Court, taking into consideration the fact that three witnesses, P.Ws. 2, 3 and 4, have identified the appellant and, further, the witnesses stated about the assault by this appellant to P.W. 2 and the injury report has also been proved by P.W. 6 convicted the appellant for offence under Section 395 of the Penal Code and sentenced, as mentioned above. 7. The defence of the appellant is that the appellant is the tenant of the informant and has falsely been implicated for the reason 3 that the appellant has not given the rent and the appellant though have denied that the wife of the appellant is not her tenant, but, he is a tenant in the house of Bacchi Devi. 8. The learned counsel for the appellant, however, contended that the appellant is resident of neighbourhood and the husband of the informant has not identified him and the prosecution has not stated in the fardbeyan about the assault by the appellant to the witnesses and it is not expected that the appellant will go without covering the face to commit dacoity in the neighbourhood to be identified and, hence, the prosecution case is not believable. 9. However, the prosecution case in the fardbeyan, itself, the name of the appellant finds place and the informant claimed to have identified the appellant and has named the appellant in the fardbeyan. However, the fardbeyan can not be said to be encyclopedia of the entire events and, hence, non-mentioning of the fact about the assault by the appellant to the daughter of the informant is not ground to disbelieve the prosecution case. However, the witnesses supported the prosecution case about the occurrence and identification of the appellant by P.Ws. 2, 3 and 4 and the specific case that the accused persons broke open the ventilator to enter into the room and threatened to open the room and then the room was opened and they entered into the room, assaulted and looted the articles. However, it is true that no independent witness has come to support the prosecution case and only family members have come to depose. However, taking into consideration the evidence of the 4 witnesses there is nothing in their evidence to disbelieve and there does not appear to be any motive for false implication and the case of the defence, as made out by the suggestion that false implication for the reason that the accused person was not paying the rent does not stand to reason. However, it is true that no independent witness has come forward to support the prosecution case, but, the prosecution case can not be rejected on this ground along that the witnesses deposed and the name of the appellant comes since the beginning and, hence, I do not find any merit to interfere with the order of conviction, recorded by the lower Court. 10. However, having regard to the fact that the appellant has remained in jail for two and half years and occurrence is of the year 1992 and the appellant has already suffered a lot and it is stated that there is no criminal antecedent, hence, the ends of justice shall meet by sentencing the appellant for the period already undergone. 11. With the modification in sentence, the appeal is dismissed. ( Gopal Prasad, J. ) The Patna High Court, The 13th day of October, 2011, N.A.F.R., S.A.