Nandu Paswan and Others vs The State of Bihar

Mandhata Singh, J.—Heard, learned counsel Amicus Curiae and learned counsel for the State.

These appeals are filed against the Judgment and order dated 24.09.1998 and 26.09.1998 passed by the Ist Additional Sessions Judge, Samastipur whereby and whereunder appellants have been convicted and sentenced to undergo R.I. for 10 years for the offence u/s 395 I.P.C. and 5 years for the offence u/s 412 of the I.P.C. and to run both the sentences concurrently.

Prosecution case, in brief, is that in the night of 27.10.1992 while all the family members of the informant were sleeping, they were asked to open door by appellant Dorik Rai finding no response dacoits broke open his door entered the house and committed loot of house hold articles. In course of dacoity, P.W.5 succeeded to came out from the house made alarm villagers gathered. They along with Police Officials chased the dacoits. Three of them were caught also.

After the trial case is ended in conviction and sentenced to appellants.

Amicus Curiae for appellants of Cr. Appeal No. 397 of 1998 and learned counsel for the appellant of Cr. Appeal No. 403 of 1998 preferred to press the quantum of sentence only and not the conviction. On that point for appellants, Nandu Paswan and Harendra Ram, it is said that they were caught with house hold articles goes to show that they did not succeed to take away house hold articles and soon after the incident, they were remanded to jail custody remained all along in jail and allowed bail only in the month of December, 1998 after a period of more than 6 years.

While submission on behalf of the appellant, Dorik Rai is that he is one of the neighbours of the informant having enmity with informant for false implication, though not established but that remains as a point of defence that can be taken with the statement of P.W.5. In para-4, it is stated that this accused-appellant was also caught in the same night and was remanded to custody along with others who were caught at the spot. This much is pointed out to show the interest of the informant''s family members to falsely involve in the case making different submissions.

Ultimately, it is submitted that the period undergone by appellants may be taken sufficient towards punishment. That is opposed by the learned A.P.P. on the ground that in cases of dacoity no liberal view should be taken on the point of sentence.

Incident of this case is of the year 1992. Two of the appellants in Cr. Appeal No. 397 of 1998 remained in custody all along the trial and appellant of Cr. Appeal No. 403 of 1998 was not caught on the spot. He also remained in custody for a period of near about 2 years. So, in my view, some liberal view is needed to be taken in interest of justice in considering the period undergone by appellants sufficient towards their punishment.

Accordingly, both appeals are partly allowed on the point of sentence only. The Judgment of conviction passed by the 1st Additional Sessions Judge, Samastipur in Sessions Trial No. 307 of 1993 is hereby affirmed. On the point of sentence the period undergone by the appellants is observed sufficient towards their punishment.

Let a copy of the first page and last page of this judgment be handed over to the learned Amicus Curiae for needful.