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2001 DIGILAW 649 (PAT)

Bhanu Prasad Alias Gopal Sah v. State Of Bihar

2001-07-27

P.N.YADAV

body2001
Judgment P.N.Yadav, J. 1. Criminal Appeal No. 389/2000 filed on behalf of Bhanu Prasad alias Gopal Sah, Criminal Appeal No. 400/2000 filed on behalf of Tarkeshwar Prasad Sao alias Tuntun Seth and Criminal Appeal No. 407/2000 filed on behalf of Bablu alias Asfaque arise out of one and the same judgment and order dated 28.9.2000 & 20.9.2000 passed by the learned Sessions Judge, Kaimur at Bhabhua in Sessions Trial No. 299/229/99/2000 and as such, they have been heard together and are going to be disposed of by this common judgment. 2. The appellants were convicted and sentenced to undergo rigorous imprisonment for seven years each under Section 394 of the Indian Penal Code (hereinafter to be referred to as the Code) vide the impugned judgment and order. 3. The prosecution case as unfolded in the FIR and evidence of prosecution witness is as follows. The informant Surendra Nath Agrawal (PW 9) had a four storeyed building. He along with his family resided on the first floor of the house while his two brothers with their families resided on the second and the third floors of the house. The ground floor remained vacant. A little away from the building the informant had a jwelliery shop. At about 8 p.m. on 1.1.1997 he was in his shop. Just then his daughter Shilpi Garg (PW 4) went to the shop and informed her father, the informant, that the appellant Bhanu along with his associates was committing robbery in the house. Getting the information PW 9 rushed to his house. While going up stairs he saw one as the miscreants fleeing away with the jwellery. When he reached the first floor of the house he found that the room was bolted from inside. He knocked at the door and then his wife opened it. The informant entered into the room and saw the appellants Bhanu and Tuntun with revolvers in their hands there. The informant tried to prevent the appellants from taking away jwellery but he was fired upon. However, the shots so fired did not hit him. His wife narrated to him how the appellants entered into the house and removed ornaments from the godrej almirah. She also stated that when she tried to prevent the appellants from committing crime, the appellant Bhanu Prasad assaulted her with fists and slaps. However, the shots so fired did not hit him. His wife narrated to him how the appellants entered into the house and removed ornaments from the godrej almirah. She also stated that when she tried to prevent the appellants from committing crime, the appellant Bhanu Prasad assaulted her with fists and slaps. The informant while leaving his shop also saw that five unknown miscreants were standing on the road and they were keeping watch over safety and security of their associates, who had entered into the house. 3. The motive attributed behind the commission of highhanded and illegal act of the appellants is that a few months ago the appellant Bhanu Prasad had demanded of the informant money and on his refusal to oblige him he, was threatened by him with dire consequences. The incident leading to commission of robbery in the house of the informant was said to have been witnessed also by Keshav Singh (PW 1). Dev Kumar (PW 2), both servants of informant (PW 9), Gopal Dubey (PW 3) who was also an employee of PW 9 and Ram Negina Dubey. 4. The fardbeyan of the informant was recorded at about 8.30 p.m. on 1.1.1997 on the basis of which the formal FIR was drawn up and Bhabhua PS Case No. 1/97 under Section 394 of the Code was registered against the appellants Bhanu Prasad and Tuntun Seth. Investigation started and after completion thereof the charge-sheet was submitted under Section 394 of the Code against all the three appellants including Bablu even though he was neither named in the First Information Report nor he was put on TI parade nor was looted property recovered and seized from his possession. The trial began before the Magistrate. After some witnesses were examined the Magistrate committed the case to the Court of Sessions holding that materials on records constituted ingredients of Section 395 of the Code. After commitment the trial commenced before the Sessions Judge. 5. The appellants were charged under Sections 395 & 397 of the Code. They denied the charges. They did not enter into defence. However, from the trend of cross-examination of the prosecution witnesses the defence seemed to be that of total denial and false implication out of sheer enmity. After commitment the trial commenced before the Sessions Judge. 5. The appellants were charged under Sections 395 & 397 of the Code. They denied the charges. They did not enter into defence. However, from the trend of cross-examination of the prosecution witnesses the defence seemed to be that of total denial and false implication out of sheer enmity. It was pleaded that the appellant Bhanu purchased a ring of gold from the informant which, later on, was found to be fake and not of gold and as such he demanded return of the price of the ring but he refused to return the money and all that gave rise to animosity between them and he had been falsely implicated on account of enmity. Appellant Tuntun Seth was said to have sold clothes to the informant on credit and when he demanded price thereof the refused to make any payment and he falsely implicated him in the instant case. 6. In order to prove its case the prosecution examined as many twelve witnesses out or whom 4-5 were formal ones. None of the members of the families of the two brothers of PW 9 was, however, examined. 7. The learned Sessions Judge after taking the facts, circumstances and evidence brought on records into account found and held the appellants guilty and convicted and sentenced them under Section 394 of the Code without giving any finding on Section 397 of the Code under which also the appellants stood charged. 8. The appe Hants in their memoranda of appeals assailed the judgment and order of conviction passed against them on several grounds. However, in course of hearing counsels appearing on behalf of the appellants submitted that they no longer challenged and assailed conviction of the appellants and they be heard merely on the quantum of sentence. It was, thus, the appeals were heard only on the point of sentence. 9. It was contended that the appellants were first offenders and they came of poor familiers and putting them behind the bar for so many years would heavily fell upon the livelihood of the members of their families as they were the only bread earners in the families. 9. It was contended that the appellants were first offenders and they came of poor familiers and putting them behind the bar for so many years would heavily fell upon the livelihood of the members of their families as they were the only bread earners in the families. It was further contended that the appellants Bhanu Prasad and Tuntun Seth had been languishing in jail custody for over three years since 18.7.1998 while the appellant Bablu alias Asfaque had served jail term for a little less than three years with effect from 17.1.1997 to 15.5.1998 and again from 23.9.1999 to 16.2.2001. In the light of the aforesaid contentions, it was submitted that the appellants be let off with imprisonment for the period already undergone by them. The APP appearing on behalf of the State conceded. However, the counsel appearing on behalf of the informant opposed the appellants move by contending that they were veteran criminals and they were accused in some other cases as well and the learned Sessions Judge awarded sentence of rigorous imprisonment for seven years after considering all aspects of the case and the nature of the offence and if they were released from jail they would pose a formidable threat to the life and property of the informant and the members of his family. 10. Regard being had to the facts and circumstances of the case and the contentions put forward on behalf of the appellants, the State and the informant and also keeping in view the fact that the appellants have been convicted under Section 394 of the Code which is triable by the Court of Magistrate, it is deemed just, proper and expedient in the interest of justice that the appellants be sentenced to imprisonment for the period already undergone by them. 11. Accordingly, the appellants are directed to be sentenced to imprisonment for the period already undergone by them which will perhaps meet the ends of justice. With the aforesaid modification in sentence all the appeals are dismissed and the impugned judgment and order of conviction stands maintained and confirmed. The appellants Bhanu Prasad alias Gopal Sah and Bablu alias Asfaque have been languishing in jail custody. Let them be directed to be released forthwith, if not wanted in any other case. The appellant Tarkeshwar Prasad Sao alias Tuntun Seth is on bail. He is discharged from the liability of his bail bond. The appellants Bhanu Prasad alias Gopal Sah and Bablu alias Asfaque have been languishing in jail custody. Let them be directed to be released forthwith, if not wanted in any other case. The appellant Tarkeshwar Prasad Sao alias Tuntun Seth is on bail. He is discharged from the liability of his bail bond. Appeal dismissed with modification.