Agam Mukhiya vs The State of Bihar

M.L. Visa, J.—This appeal by sole appellant is directed against the judgment and order dated 7th of April, 1989 passed by the 1st Additional Sessions Judge, Madhubani in Sessions Trial No. 53/87/ 3/88 convicting and sentencing the appellant to undergo RI for 8 years u/s 395 IPC and RI for 5 years u/s 412 IPC. The prosecution case in brief is that on 4.1.1987 the informant Umesh Chandra Jha (PW-1) was sleeping in his house along with his family members when at about 11.00 P.M. he awoke on hearing the sound of breaking the outer door of his house. He suspected that some dacoits had entered his house. A lantern was burning in the room at that time. Thereafter he found that four dacoits after breaking the laches of the door of his room entered there. Three of them were armed with ''farsa'' and one was armed with pistol. One of the dacoits gave a blow from the blunt portion of ''farsa'' on his right shoulder. The informant ran outside of his house where he found 3-4 more dacoits standing there. He raised alarm on which Mohan Ram, Ram Charitar Mishra and others came there and the dacoits taking a box containing clothes and a cash amount of Rs. 350/- fled away. The Fardbeyan (Ext.1) of informant was recorded by S.I. Devendra Narayan Singh (PW 7) and on the basis of Fardbeyan a F.I.R. (Ext. 6) u/s 395 against unknown was lodged. During the course of investigation appellant was identified in T.I. Parade by informant and his wife (PW 2). A pink shawl was also recovered from his possession which was also put on T.I. parade and the informant and his wife Shyama Devi (PW 2) identified it. After investigation police submitted charge sheet u/s 395/412 of IPC. After commitment of the case to the court of Sessions the appellant was put on trial after framing charges u/s 395 and 412 IPC. The case of appellant before the court below was complete denial of the charges and his innocence. After the trial the appellant was found guilty u/s 395 and 412 and was, accordingly, convicted and sentenced.

In order to prove its case the prosecution has examined 8 witnesses. Sunil Kumar Singh (PW 8) is a formal witness who has proved a letter (Ext. 7) in the handwriting of the then officer-in-charge of Ladania P.S. addressed to A.P.P. informing him that material exhibit with challan was being sent and a challan (Ext.8) for a shawl in the handwriting of same officer-in-charge. Umesh Chandra Jha (PW 1) is the informant. Shyama Devi (PW 2) is the wife of informant. Surya Narayan Patel (PW 3) and Mohan Ram (PW 4) have been tendered. Jyoti Kumar Shrivastava (PW 5), Judicial Magistrate, Madhubani held T.I. Parade of the suspects including the appellant. Ganesh Prasad (PW 6), Anchal Adhikari, Jainagar held T.I. Parade of shawl recovered from the possession of appellant. Devendra Narayan Singh (PW 7) is the I.O. of this case.

Umesh Chandra Jha (PW 1), the informant and Shyama Devi (PW 2) wife of informant have supported the case of prosecution on the point of dacoity. They have said that in the light of lantern they identified one dacoit, and later on in T.I. Parade they identified him who is the appellant. PW 5 has said that on 9.1.87 he in the capacity of Judicial Magistrate of Madhubani under the orders of Chief Judicial Magistrate conducted the T.I. Parade of appellant, who was identified by the informant and PW 2. PW 6 has stated that on 2.3.87 he was posted as Anchal Adhikari at Jainagar and conducted T.I. Parade of shawl (Material Ext.1) which was identified by the informant and his wife PW 2. From the evidence of informant and his wife coupled with the evidence of PW 6 & 7 I find that the prosecution has proved the charges u/s 395 and 412 against the appellant.

Learned counsel appearing on behalf of appellant has submitted that the appellant has remained in jail custody from 4.1.87 to 24.5.89, a period of about 2 years and 5 months and the occurrence of the case is said to have taken place on the night of 4.1.87, more than 12 years ago and the appellant has been released on bail on 24.5.89, about a period of more than 10 years. It has been submitted that these facts may be taken into consideration while deciding the quantum of punishment.

Considering the aforesaid facts as well as the fact that only some clothes and a sum of Rs. 350/- have been stolen in the dacoity and from the possession of appellant only one shawl has been recovered and no injury has been caused to anybody during the commission of dacoity I think that the sentence for the period already undergone by the appellant will serve the purpose and meet the ends of justice. Accordingly, the sentence of appellant under both the heads is reduced to the period already undergone. The order of court for running both the sentences concurrently is sustained. In the result, with the aforesaid modification the appeal is dismissed. The appellant is on bail. He is discharged from the liabilities of his bail bonds.