IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APPEAL No. 198 OF 2007 ********** (Against the order dated 21st of December 2006 passed by Addl. Sessions Judge, F.T.C. No. I, Muzaffarpur in Sessions Trial No. 334 of 2004.) KRISHNA RAI @ KRISHNADEO RAI, S/o. Hridya Rai, R/o. village- Manipur, Shiv Nagar, P.S. Piyar, District- Muzaffarpur. --------------------------(Appellant) Versus THE STATE OF BIHAR --------------------- Respondent. For the appellant: Mr. Satya Narayan Mishra, Advocate. Mr. Basant Kumar Mishra, Advocate. For the State : Mr. Ajay Mishra, Addl. P.P. ---------- P R E S E N T THE HON'BLE MR. JUSTICE C.M. PRASAD C.M. Prasad, J. This appeal is against the judgment dated 21.12.2006 of the Addl. Sessions Judge, F.T.C. No. I, Muzaffarpur passed in Sessions Trial No. 334 of 2004, whereby the appellant was convicted under Section 395 of I.P.C. and sentenced to undergo R.I. for ten years and a fine of Rs. 10,000/- and in default of payment of fine undergo R.I. for one year. 2. The informant Nathuni Sah (P.W.3) gave his fardbeyan to police on 31.01.2004 at 5.00 a.m. on the Varandah of his grocery shop stating that in preceding night (30/31.01.2004) while he was sleeping on the Verandah of the adjacent room of the house in which the shop situated he woke up at about 12.00 2 O’clock and he saw two persons were going on the adjacent road and thereafter 10-12 criminals armed with pistol and knife surrounded him and demanded the key of the shop. At that time the criminals forced open the door of the room of his wife and threatening her took the key of the shop and then opened the lock and took articles and cash of Rs.5,000/- and kept it in a gunny bag. During that time, he (informant) and his wife (P.W.4) identified Sindhu Paswan (absconder) and Krishna Rai (appellant) and Nawal Rai (absconder) in the light of the torch flashed by the criminals, because the criminals were known from before. It was also alleged that the criminals forcibly took the nose pin of his wife. Thereafter, the criminals captured his (informant’s) son, Santosh Sah (P.W.11) and demanded Rs.50,000/-. At this he and his wife expressed lack of money and requested for releasing his son then the criminals released his son and went away with gunny bag saying that they must arrange the money by 5th of the month and should come near Bandra block with money else in future the son would be kidnapped away. The informant gave physical description of other criminals and stated that they were speaking local language. He further stated in the fardbeyan that due to fear he and his wife remained in the house during the occurrence and 3 after fleeing of the criminals came out and went into the village and raised hulla, whereupon villagers assembled and he told them about the occurrence. The informant also stated to have learnt from them that dacoity had also been committed in the houses of co-villagers Sant Narayan Sharma, Rajendra Sah and Arun Kumar Choudhary. 3. As many as 14 witnesses were examined by the prosecution. The P.W.3 Nathuni Sah (informant), P.W.4 Deo Kumari Devi (wife of the informant), P.W.11 Santosh Kumar (son of the informant), P.W.13 Rinku Kumari (daughter of the informant) were the inmates of the house and were the important witnesses who deposed about the occurrence and claimed to have identified the appellant and others during the occurrence. The P.W.2 Shikandar Sah was the brother of the informant who is said to have come to the P.O. on hearing about the occurrence and he also claimed to have identified the appellant and other criminals. Out of the remaining witnesses namely, P.W.1 Munna Ansari, P.W.5 Nawal Sah, P.W. 6 Satyanarayan Sharma, P.W.7 Rajendra Sah, P.W.8 Pramod Mishra, P.W.9 Arun Kumar Choudhary, P.W.10 Pana Devi, P.W.12 Jogendra Sah and P.W.14 Nirmala Devi are the co-villagers including some of those in whose houses also dacoity had been committed and these witnesses stated about 4 the commission of dacoity in the shop of the informant and some others but none of these witnesses claimed to have identified any of the culprits and none of these witnesses has named the appellant claiming to have identified him during the occurrence. Therefore, the evidence of P.Ws. 2, 3, 4, 11 & 13 are the only material evidence to be considered for the purpose of deciding the complicity of the appellant in the commission of the offence. 4. P.W.3 (informant) supported his fardbeyan and he deposed that in the night of occurrence at 12.00 O’clock while he was sleeping in his room he woke up on hearing the noise of 10-12 dacoits who had surrounded his shop and room and then he saw that the criminals who were armed with pistol and knife demanded the key of the shop from him. The key was with his wife. They took the key from his wife and opened the lock of the shop with it and then they took away oil, soap battery etc and cash of Rs.5,000/- and kept it in a gunny bag. They also forcibly took the gold nose pin from his wife. He further deposed that the criminals captured his son Santosh aged about 15 years and demanded Rs.50,000/- for releasing him but on much request they released him saying that later on the money must be sent to them at Bandra Block. He also deposed that amongst the criminals he identified Krishna Rai 5 (appellant), Sindhu Paswan and Nawal Rai in torch light. It was also deposed by him that the criminals had committed dacoity in other houses also. He stated that he gave out his fardbeyan Ext-1 and put his signature on it and that his wife had also put her signature on the same as a witness. He identified the appellant in dock during trial. Thus the informant corroborated the fardbeyan on all the material particulars of the prosecution story. 5. P.W.4 Deo Kumari Devi the wife of informant deposed that when she was sleeping in her room and her husband was sleeping in the adjacent room she woke up on hearing the sound of breaking of door of the room and saw the dacoits armed with dagger and pistol at the door of her house. The dacoits demanded the key of the shop. Out of fear she gave the key to them and then the dacoits, on opening the lock of the shop room, looted away oil, soap, battery etc. from the shop and her nose pin was also taken away. She further deposed that the dacoits had captured her son and demanded Rs. 50,000/- saying that they will release the boy on fulfillment of the demand but on their requests to them they released the boy saying that the money must be paid to them at Bandra Block within five days, failing which the entire family would be killed. It was further deposed that the dacoits had 6 also robbed three other houses. She identified the appellant in dock and she said that besides the appellant Krishna Rai she had also identified Nawal Rai and Sindhu Paswan. At para-3 of her evidence she deposed that appellant Krishna Rai used to come twice in a month to her shop for purchasing Shikhar Gutkha. Thus, this witness had seen the appellant earlier when he used to come as a customer for purchasing Gutkha and thus she had occasion and opportunity to identify him during occurrence. The P.W.13 Rinku Kumari, the daughter of the informant has stated at para-13 of her evidence that the shop remained open from 7.00 a.m. to 8.00 p.m. and during that period the entire family used to remain at the shop. Thus, there was occasion for this witness and the other family members to have identified the appellant during the occurrence because they had occasion to see the appellant on earlier occasions when he used to come to the shop. 6. P.W.13 Rinku Kumari is the informant’s daughter, who deposed on similar lines saying that in the night at about 12 O’clock while she was in her room the dacoits forcibly entered into the room and took away the key of the shop from her mother and on opening the lock took away articles and grains and that the dacoit had flashed torch light and in that torch light she had 7 identified the appellant while he was taking away money. She deposed at para-13 that during 7.00 a.m. to 8.00 a.m. when the shop remained open the entire family members used to remain at the shop. She also deposed that in the night of occurrence she had prepared meal at 9.00 O’clock and thereafter carrying meal she had gone to the shop as all the family members were present there. She also deposed that there were two Chaukies in the room on which she was sleeping in the night of the occurrence. 7. The P.W.11 Santosh Kumar, the son of the informant also deposed that in the night at about 11.00-12.00 O’clock while he was sleeping in his room, he woke up on hearing the sound of breaking of door shutter and then he saw that 5-6 persons entered into the room. They threatened and forcibly took away the key of the shop from his mother and then after opening the lock took out articles from there. He also deposed that his father who was sleeping in the Verandah also woke up and then keeping under threat of pistols the criminals got them seated there. He further deposed that the dacoits had flashed their torch and in the flash light took out money from the cashbox of the shop. He further deposed that in the light of torch he identified Krishna Rai (appellant) and Sindhu Paswan. He also deposed that at the time of 8 departure the dacoits took away his mother’s nose pin and they also took away biscuits, M. Oil, Battery Cigarettes etc. from the shop. He continued to depose that the criminals had threatened his mother to give Rs. 50,000/- else they would take away her son i.e. he himself. But on mother’s asking for time they said the money must be sent in 4-5 days at Bandra Block and then they left him. At para-5 of his evidence he has stated that his shop and house are closely situated at a distance of 2-4 Lagis only. Thus, the house and shop of the informant situated in close distance. It appears from the evidence particularly the evidence of P.W.13 at para-3 that food used to be cooked at the house but thereafter they used to come at the shop where they used to remain. This witness had identified the appellant in dock also during trial. Thus, this witness has identified the appellant during trial and he corroborates the prosecution case on all the material particulars of the case. 8. The P.W.2 Shikandar Sah the elder brother of the informant deposed that his house situates near the house of the informant. He further deposed that on hearing hulla he came out of his house and went near the house of the informant and saw the criminals fleeing away carrying revolver, Jhola and gunny bags. He further stated that he had a torch and in the torch light he 9 identified the appellant Krishna Rai @ Krishnadeo Rai as well as Sindhu Paswan and Nawal Paswan amongst the criminals. He identified the appellant in dock during trial. He also deposed that the informant had disclosed before him that the dacoits had taken the keys by threatening him and taken away all articles and cash of Rs.5,000/- from the shop. At para-4 of his evidence he stated that the torch he carried was a three cell torch and the night was dark. 9. Thus, this witness came to the P.O. from his house situated nearby and he has seen the criminals in his torchlight fleeing away with looted articles and he also identified them in his torchlight. He has identified the appellant in the dock during trial. He is the natural and probable witness. 10. Besides the above witness the other witnesses namely, the P.Ws.5, 6, 7, 9, 10, 12 & 14 have stated about the occurrence of dacoity in the house of informant and others. Out of these witnesses P.Ws. 7 & 14 are the witnesses whose houses were also robbed by the criminals and they deposed about robbery in their houses but they did not identify any of the criminals. On consideration of the evidence of P.Ws. 3, 4, 11 & 13, who are the inmates of the shop/house premises they appear to be the natural and probable witnesses and they have identified the appellant 10 during occurrence in the in the light of the torches flashed by the criminals themselves. They have also identified the appellant in dock during trial. Their evidence is reliable and trustworthy. 11. During argument learned counsel for the appellant submitted that in this case only the family members of the informant have identified the appellant and they have stated about his participation in the dacoity. It was submitted that any other co- villagers who were amongst the other witnesses examined do not claim to have identified the criminals. 12. Learned Addl.P.P. replied that the dacoity was committed inside the room premises of shop hence, the family members had ample opportunity to see the criminals from close distance. It was also submitted that so far other villagers are concerned they have come subsequently on hearing hulla when the criminals were fleeing so they may not have opportunity to look to the criminals from close distance, so no other witness identified them. In the facts and circumstances of the case, it appears that in such a case when dacoity is committed inside shop/house the inmates of the shop/house will be the most natural witnesses to have seen and identified the criminals. Therefore, no adverse inference can be thrown on this score that the other witnesses 11 excepting the family members of the informant did not claim to identify the appellant. Learned counsel for the appellant also drew attention towards some minor discrepancies pointing out that at one place the informant says that he was sleeping in the Varandah of the house but at other place in cross-examination he states that he was sleeping inside the room of the house. But this minor discrepancy appears to have occurred under the stress of cross- examination. No other defect or discrepancy was pointed out in the evidence of the witnesses. 13. Thus, on considering the evidence and facts and circumstances of the case, I find that prosecution has been able to prove the charge beyond the shadow of reasonable doubt. Therefore, the conviction of the appellant as passed by the learned trial-court under Section 395 of the I.P.C. is sustained. The appellant has been sentenced by the trial-court to undergo R.I. for ten years and he has also been levied with a fine of Rs. 10,000/-. 14. As to the quantum of sentence, learned counsel for the appellant submitted that the sentence is excessive and disproportionate to the offence committed by the appellant. It was submitted by him that the value of the articles and cash taken away was not huge. Further submission of the learned counsel was that 12 the appellant is in custody since 10.02.2004 and thus he is going to complete seven years of incarceration within three weeks. Learned counsel also continued submitting that the appellant has remained in custody for a long period and his family has suffered a lot. Learned counsel further submitted that the appellant has got a marriageable daughter and there is none in his family to look after the affairs of the family. Learned counsel also submitted that there is nothing on record to show any previous conviction of the appellant. Learned Addl.P.P. submitted that the appellant has been found guilty of committing offence of dacoity. Thus, hearing both sides and considering the facts and circumstances and the nature of offence and also considering the period of incarceration undergone by the appellant, I feel that a sentence of seven years of R.I. will meet the ends of justice. In such view of the matters, the sentence as passed by the learned trial-court is modified to a sentence of Rigorous Imprisonment for seven years only which the appellant has to complete. In the result, the appeal is dismissed with modification in sentence as indicated. Patna High Court, Dated, 19th January, 2011. N.A.F.R./Mkr. (C.M. Prasad, J.)