CRIMINAL APPEAL No.298 OF 1993 Against the judgment of conviction and sentence dated 8th September, 1993 passed in Sessions Trial No. 178 of 1985 by Sri Amod Prasad Ram, Ist Additional Sessions Judge, Arrah. ********* 1. MAHESH DUSADH S/O SINGHESAN DUSADH 2. SINGHASAN DUSADH S/O NATHUNI DUSADH BOTH RESIDENT OF VILALGE- DHARMDAS DEHRI, P.S.- TARARI, DISTRICT- BHOJPUR ……………………………APPELLANTS Versus STATE OF BIHAR …………………………..RESPONDENT ************ For the Appellants :- Mr. Rajani Ranjan Pd., Advocate Mr. Sanjay Kr. Tiwary, Advocate For the State :- Mr. Satyanarayn Prasad,APP ************** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA S. K. Sharma, J. Above named appellants have preferred this appeal against the judgment of conviction and order of sentence dated 8th September, 1993 passed in Sessions Trial No. 178 of 1985 by the learned Ist Additional Sessions Judge, Arrah whereby they have been convicted and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 500/- each and in default to undergo further rigorous imprisonment for five months for the offence punishable under section 380 of the Indian Penal Code. Other accused persons who have faced trial with the above named appellants have been acquitted after trial. In the night of 13the October, 1983 15 thieves entered into 2 the house of PW 5, the informant Rafik Ansari and started stealing the articles. The informant woke up from his sleep and raised alarm upon which the villagers chased the escaping thieves in the torch light. The accused persons were identified. The firing was also resorted from the side of the thieves. In course of occurrence some ornaments, two radios, H.M.T. watch, utensils, cloths and three boxes worth rupees 22490/- were stolen away. The informant along with other witnesses PW 4 Hanif Ansari, PW 3 Ali Hussain and Md. Chasamddin Ansari (not examined) went to police station and gave the fard beyan which resulted into registration of Tarari P.S. Case No. 143 of 1983 under sections 457 and 380 of the Indian Penal Code against above named these two appellants. After investigation Chargesheet was submitted against 12 accused persons under section 395 of the Indian Penal Code. One accused Dhananjai @ Dhanji Singh was not sent up for trial. Cognizance was accordingly taken and accused Dhananjai @ Dhanji was discharged. After commitment the trial proceeded where the charges were explained to the accused persons, they pleaded innocence and preferred to face trial. The defence of the appellants was of false implication on account of enmity from before. The prosecution has examined six witnesses to prove its case, they are Khursid Ansari (PW1), Md. Sarif (PW 2), Ali Hussain (PW 3), Hanif Ansari (PW 4), Md. Rafik Ansari (PW 5) and Kulsum (PW 6). The defence has examined two witnesses, namely, DW 1 Pashupati Nath and DW 2 Tung Nath 3 Prasad. Other accused persons, namely, Jagarnath Dusadh, Jitendra Dusadh, Shobhlayak Dhobi, Mahendra Sah, Rajeshwar Thakur, Kameshwr Dusadh and Sadhu @ Jadubir Ahir were neither named in the FIR nor they have identified either on the spot or in the test identification parade. No stolen articles were recovered from their possession. The learned trial court found no evidence against seven other accused persons. With regard to others PW 3 Ali Hussain and PW 4 Hanif Ansari have stated that on alarm they chased the thieves and had identified them in the torch light. According to PW 3, Dhananjai Singh was having country made gun and Anant Ram was having gun. Accused Madan Ram was having Bhala and Birendra Singh was having lathi in their hands. This statement of PW 3 was not fully corroborated by the PW 4. PW 4 has stated some different facts. If those accused persons, namely, Dhananjai Singh, Anant Ram, Madan Ram and Birendra Singh were identified in the torch light then it was surprising that they were not named in the FIR. So the learned trial court has rightly found them no guilty and acquitted them on this score alone. With regard to these appellants the witnesses have stated about their presence that is why they have been named. The consistent evidence is only with regard to theft and the evidences does not prove the case beyond all reasonable doubts under section 395 of the Indian Penal Code and the learned trial court was justified 4 in not convicting these two appellants under section 395 of the Indian Penal Code. Evidence is consistent that on the date and time of occurrence these two appellants have entered into the house of the informant for committing theft and they were identified in the torch light. Therefore, I am of the view that the prosecution has been able to prove its charge under section 380 of the Indian Penal Code against the appellants so order of conviction is correct and needs no interference. So far as the question of sentence is concerned it appears that during the trial the appellant Mahesh Dusadh remained in custody between 17.10.1983 to 19.1.1984 whereas another appellant Singhashan Dusadh remained in custody between 9.2.1984 to 9.5.1984 and after judgment they have remained in custody for more than four months. The age of the appellant No. 2 Singhasan Dusadh was 66 years in the year 1993 meaning thereby he has crossed 80 years now. Considering the above facts, I am of the view that the sentences awarded to the appellants needs modification. Accordingly, it is modified to the extent that the period undergone by the appellants during trial and appeal shall be deemed to be sufficient for the ends of justice. In the result the appeal is dismissed with the modification in the sentence. (Shyam Kishore Sharma, J.) Patna High Court, Patna 28th August, 2009 N.A.F.R./avin