Hasibul and Another vs State of Bihar

D.P.S. Choudhary, J.—This appeal is directed against the judgment and order dated 19-9-1994 passed by the 2nd Additional Sessions Judge, Purnia in Sessions Trial No. 191/91 convicting both the appellants u/s 395 of the Indian Penal Code and each of them has been sentenced to undergo R.I. for seven years.

The prosecution case in brief is that the informant Asfaque Ahmad (P.W. 7) was sleeping in his room in the night of 23-3-1990. At about 12.00 O''clock about five miscreants entered into his room after breaking opened the door. The informant identified three of them including the appellants. They demanded money from the informant. They tied up his hand and he was dragged to his nearby shop. 10-12 dacoits were standing in the courtyard from before out of which he identified one Farda (Appellant No. 2). It is further case that miscreants broke open the lock of the shop and started torturing the informant by burning his leg with papers. He has to disclosed that about 22,000/- rupees were kept in the sleeping room from where the miscreants took away the entire amount after breaking almirah. They also committed dacoity in the room of informant''s mother (P.W. 10). From the fardbeyan recorded by Araria Police at Government Hospital, Araria on the same night, the case was registered. Before the trial Court, there were six accused facing trial but others were acquitted and only two, who are appellants, were convicted.

The case of the defence was that they have been falsely implicated in this case.

During the investigation some of the accused were apprehended and put on test identification parade and some were identified by the witnesses. The prosecution in all examined 16 witnesses. The trial Court after considering the evidence on record convicted both the appellants as indicated above.

The learned appellant''s Lawyer submitted that without going into the merit of the case he is to submit that appellant No. 1 Hasibul was remanded in this case on 23-5-1990 and on 24-4-1993 he was allowed provisional bail but the again surrendered in the Court on 30-4-1994 and since then till today he is in jail custody. Thus, he has remained in jail custody for about 8 years six months and few days. Similarly, appellant No. 2, Farda alias Md. Farid was remanded in this case on 26-6-1990 and since then he is in custody. He has been in jail custody for about 9 years and six months. Therefore, both the appellants have served the period of sentence more than seven years as awarded against them u/s 395 of the I.P.O.

1 perused the lower Court records and find substance 111 the above submission of the learned appellants'' lawyer. The learned A.P.P. also submitted that both the appellants have been in jail custody for more than seven years. In view of this fact it is directed that the Jail Superintendent, Purnia shall release both the appellants at one, if they are not wanted in any other case,

With this direction the appeal fails.