Criminal Appeal (SJ) No. 54 of 1999 ~~~~~~ Against the judgment of conviction dated 30.01.1999 and order of sentence dated 01.02.1999 passed by Sri Ram Narayan Singh, learned Additional Sessions Judge - 4th, Purnia in Sessions Case No. 344 of 1988/Tr. No. 278 of 1996. ~~~~~~ Gopal Mahto, Son of Ram Swarup Mahto, resident of village – Damailighat, Police Station – Mirganj (Dhamdaha), District – Purnea. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ~~~~~~ Appearance : For the Appellant : Mr. Vikram Deo Singh, Advocate. Mr. Dharmendra Kumar Singh, Advocate. 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. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted under Section 392 of the Indian Penal Code read with Section 397 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. 3. The prosecution case, as alleged, in the fardbeyan of the informant is that on 27.09.1997 at about 7:00 P.M. he rushed to his house. On Hulla of his wife Ramabati Devi knew about the thief the informant saw that Gopal Mahto armed with gun and Yugal Mahto was taking the articles of his house. Gopal Mahto and Yugal Mahto came out and pointed out his gun to the informant. Thereafter Ram Chandra 2 Paswan the nephew of the informant reached there. Gopal Mahto pointed out his gun on him and commanded to give the articles else he will be killed but in the meantime Salaindra Paswan the brother-in-law of the informant and his son Jalandhar Paswan, Jugeshwar Paswan, Ambika Paswan, Ram Balak Paswan, Permanand Paswan reached there and caught hold of Gopal Mahto and snatched his gun. Yugal Mahto was also caught hold of him and from his possession a Lota and two live cartridges were recovered. 4. On the fardbeyan of the informant, the First Information Report was lodged and after investigation charge-sheet was submitted, cognizance was taken and case was committed to the court of Sessions. During the trial charge was framed under Sections 394, 397 and 402 of the Indian Penal Code. 5. During the trial 12 witnesses were examined on behalf of the prosecution. 6. The defence of the accused persons is that they have neither committed theft nor they were caught nor any articles were recovered from their possession and the witnesses have deposed falsely. Even though the witnesses have supported the prosecution case as alleged in the offence about Hulla by the wife of the informant and then the witnesses reached there and caught hold of them and from the possession of Yugal Mahto a Thali and Lota were recovered from their possession as well as the rifle and two live cartridges were also snatched. However, the I.O. of this case was not examined. Neither the 3 arms nor Thali and Lota which were seized from the possession of the appellant which is said to have seized were recovered. 7. P. W. 6 though has stated that gun, Thali, Lota and cartridges were recovered from the possession of the appellant and he signed on the seizure list and his signature has been marked as Ext. 1. However, neither the Thali, Lota and arms were produced before the court nor there is any report of the Sergeant Major that whether the said arms and ammunitions were effective. However, it is strange that the appellant also belong to the same village Damailighat, Police Station – Mirganj (Dhamdaha) and the time of occurrence is about 7:00 P.M. in the evening. However, neither the looted articles nor the arms have been brought in evidence though it was seized. Neither the arms nor the ammunitions were produced in court nor marked as material exhibit. The I.O. has not been examined to substantiate the case of the prosecution regarding the recovery of arms and ammunitions. 8. However, the trial court taking into consideration the evidence convicted the appellant under Sections 392 and 397 of the Indian Penal Code. 9. Learned counsel for the appellant, however, contended that neither the articles seized like the arms and ammunitions nor the utensils seized has been produced before the court nor the witnesses have examined though there is allegation that the robbery was being committed along with arms. 10. However, P. W. 6 and other witnesses have supported the 4 prosecution case about recovery of Thali, Lota and rifle but neither Thali, Lota nor the rifle produced before the court nor any report of Sergeant Major that arms and ammunitions were effective nor the Sergeant Major was examined. 11. Hence, having regard to the fact that neither the arms and ammunitions nor the articles seized have been brought in evidence and hence it casts a doubt about the conviction under Section 397 of the Indian Penal Code neither any report that those articles which were seized were firearm. The I.O. has not been examined and has not come to depose in the case and hence it cannot be well inferred that the dacoity was committed with a firearm. Hence the conviction under Section 397 of the Indian Penal Code is not sustainable. However, having regard to the fact that the witnesses have supported the prosecution case that the appellant came and snatched the articles and hence the conviction can well be sustained only for attempt to commit robbery under Section 392 of the Indian Penal Code. 12. However, having regard to the fact that the appellant has remained in jail for about more than three years and hence the ends of justice shall meet by sentencing the appellant period already undergone and hence in the facts and circumstances the appeal is allowed in part with modification in sentence. (Gopal Prasad, J.) Patna High Court, Dated, the 02nd December, 2011. N.A.F.R./Kundan.