IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No. 88 of 1997 Against the judgment and order dated 11.03.1997 and 12.03.1997 respectively passed by Sri Someshwar Nath Pathak, District & Sessions Judge, Buxar in Sessions Trial No. 192 of 1996. 1. Dukhan Mahto, Son of Hargovind Mahto. 2. Manan Mahto @ Manan Paswan, Son of Bhola Paswan. 3. Pappu Yadav, Son of Awadhesh Yadav. All resident of village – Govindpur, P.S. – Nawanagar, District – Buxar. 4. Ramashish Yadav @ Ram Ashish Yadav, Son of Ram Ratan Yadav, resident of village – Nakhpur, P.S. – Nawanagar, District – Buxar. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ----------- For the Appellants : Mr. Arun Kumar Tripathi, Amicus Curiae. For the Respondent : Mr. Sujit Kumar Singh, A.P.P. ------------ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. No one appears on behalf of the appellants. Mr. Arun Kumar Tripathi, Advocate is appointed as amicus curiae to assist this Court. 2. Heard learned amicus curiae and learned counsel for the State. 2 3. The appellants have been convicted under Section 395 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for five years. 4. The prosecution case as alleged is that while the informant was sleeping in the night at about 1:30 A.M. he got up on the sound of mob and in torch light saw 15 to 20 persons armed with rifles and guns entering into the premises, in the mean time they were making Halla and two persons caught hold of him and started assaulting him and he has identified Dukhan Mahto and Manan Mahto in the mean time 2 persons came and opened the main door and took away two boxes, two attachies and also motor starter etc. worth Rs.30,000/- and the inmates of the house identified Dukhan Mahto, Manan Paswan, Pappu Yadav, Ram Ratan Yadav and Ramashish Yadav along with 10 to 15 persons. 5. On the statement of the informant, Ram Niwas Singh FIR was lodged and after investigation police submitted charge-sheet, cognizance was taken and the case was committed to the court of sessions and thereafter charge was framed under Section 395 of the Indian Penal Code against the appellants. Eight witnesses were examined on which 3 P.W. 8 is the I.O., P.W. 7 is the informant, P.W. 5 is the villager and other witnesses are the inmates of the house and after considering the oral and documentary evidence the order of conviction and sentence recorded. 6. The learned amicus curiae of this case has submitted that the occurrence took place at 1:30 A.M. in the mid night. However, the FIR was lodged on the next day. However, the place of occurrence is only five kilometers from the police station. It is submitted that one of the appellant Dukhan Mahto is the Gotia and there was prior enmity with the Manan Mahto @ Manan Paswan is also the co-villager and except the I.O. and P.W. 5 the other witnesses are inmates of the house. No other independent witnesses have been examined. Though the I.O. found the articles of the houses scattered. The details of articles have not been given. 7. Learned counsel for the State, however, submits that the occurrence took place at 1:30 A.M. in the mid night and on the very next day the matter was reported to the police and since the police station was five kilometer it may have taken time and the witnesses have identified 4 in the torch light as well as in the electric bulb and P.W. 5 has corroborated. 8. Hence, taking into consideration the respective submissions and on perusal of the records and the evidence of the witnesses, it is apparent that the witnesses have supported the prosecution case regarding the identification of the appellants. However, there is enmity and it is stated that one of the appellants is Gotia and one co-villager having identified during the trial and description has been given that the two boxes, starter etc. have been taken away along with the articles. However, the description of article in box has not been given and except the inmates of the house none came to support the factum of dacoity and even the identification claimed to be in torch light but the same has not been produced in court. 9. However, having regard to the submissions of the parties that the occurrence is of the year 1996 and 15 years have elapsed and the accused persons suffered during the period with regard to the pendency of the appeal hence under the facts and circumstances and the accused persons remained in jail from 11.03.1997 to 12.04.1997 but the bail was 5 granted by the Hon’ble High Court and Manan Mahto @ Manan Paswan remained in jail from 30.01.1997 to 11.03.1997, Ramashish Yadav and Pappu Yadav remained in jail from 09.02.1996 to 21.04.1997 and hence the ends of justice shall meet by sentencing the appellants for the period already undergone and hence with this modification of sentence, the appeal is dismissed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 8th July, 2011. N.A.F.R./Kundan.