Arjun Mahto vs State Of Bihar

1. These three appeals have a common matrix and judgment of a Division Bench of the Patna High Court. By the impugned judgment, the State's appeal was dismissed while in the case of present appellants their conviction was altered from Section 396 of the Indian Penal Code, 1860 (in short the `IPC') to Section 395 IPC. The sentence of Rigorous Imprisonment for life was altered to seven years rigorous imprisonment.

The source of identification was the light of lantern burning in the house. The value and the list of the articles was to be furnished subsequently. Altogether 70-80 dacoits were alleged 3 to have participated in the dacoity. While retreating the dacoits were rising slogans "M.C.C. Zindabad". After the dacoits had left, the informant came to know that dacoits had also entered into the house of his uncle and grandfather and after causing injuries to them they had also looted away a Licensee gun from their house.

After investigation charge-sheet was submitted by the officer against some of the accused persons named in the F.I.R and also against some of the accused who were identified 4 in the T.I. Parade and also against some of these who were named subsequently by the witnesses before the investigating police officer whose names neither figured in the F.I.R. nor were said to have been identified in the test identification parade. Some of the accused named in the F.I.R. were not sent up by the police for trial. However, some of them were made accused by the orders of the trial court under Section 319 of the Code of Criminal Procedure, 1973 (in short `Cr.P.C.'). Some of the P.Ws were already examined before charge was ordered to be framed against four of the accused under Section 319 Cr.P.C. which resulted in the de novo trial of all the accused persons.

Altogether eight witnesses were examined on behalf of the prosecution. Three of them i.e. Ganzaffar Ali Khan (PW 1), Zahid Ali Khan (PW 2) and Yusuf Ali Khan (PW 4) were three sons of Khalil (PW 2) in whose house the alleged dacoity took place. PW 4 the informant was also seriously injured and according to the prosecution sustained eleven injuries. 5 The trial court placed reliance on the evidence of all the four witnesses who claimed to be eye witnesses. Placing reliance on their evidence, the trial court held the five appellants in the three appeals before this Court to be guilty of offence punishable under Section 396 IPC. However, he directed acquittal of the eleven co-accused persons. The convicted accused persons preferred two appeals before the High Court while the State preferred an appeal questioning acquittal of Dr. Shamin Ahmad Khan alias Samman Khan. The High Court held that though the evidence of PWs 1 & 3 cannot be said to be cogent, the evidence of PWs 2 & 4 were without blemish. Accordingly it upheld the judgment of the trial court, so far as finding the appellant's guilt is concerned. It found that occurrence took place on 15.3.1983 and the deceased breathed his last long after about a month. That being so the appropriate conviction would be under Section 395 IPC. Accordingly the conviction was altered and sentence imposed was also altered.

13. The accused persons who are on bail, shall surrender to custody forthwith to serve remainder of their sentence.

14. The appeals fail and are dismissed.