Judgment BRAJ NANDAN PRASAD SINGH, J. 1. Allegedly in the evening of 17th December, 2000, the miscreants, who were 15/20 in numbers, holding lethal weapons ransacked house of Neelam Devi, coerced house inmates, relieved family members of their ornaments, assaulted Neelam Devi with rod and having closed house inmates inside the room, decamped with booty which include electronics and other house hold articles. House mistress namely, Neelam Devi took recourse to public authority and set the police in motion on rendering her fardbeyan before the Police, at 21.00 hours on 17th December, 2000 in the clinic of Dr. Chandra Bhushan. As usual, investigation followed, in course of which, Investigating Officer recorded statement of witnesses, took steps for apprehension of miscreants and on conclusion of investigation, laid charge- sheet before the Court. The appellant was shown to have been identified by house mistress, who was maker of fardbeyan, during commission of dacoity. In trial that followed, the State examined seven witnesses including house mistress, her two sons namely; Tushar Kumar (PW 1) and Tunir Kumar (PW 2) and also her daughter namely, Swati Kumari (PW 3). The house mistress was PW 4. The husband of the house mistress who was PW 5 was simply tendered by the State, there being no evidence about the incident. Prabhat Kumar Singh (PW 6) was the Investigating Officer and Dr. Chandra Bhushan Prasad (PW 7) was the doctor who statqd to have examined Neelam Devi after the incident. 2. The defence of the appellant both before the Court below and this Court had been that of innocence and he ascribed his false implication due to dispute persisting between the parties relating to fare of tractor. However, the defence had not chosen to examine any witness to strengthen the assertion made on his behalf at trial, and the Trial Judge while rejecting plea of innocence of the appellant, recorded finding of guilt and sentenced the appellant to suffer rigorous imprisonment for a term of 10 years under Section 395 of the Indian Penal Code and also sentenced him to pay fine of Rs. 1,000/-, in default of which, he was to suffer rigorous imprisonment for a term of one year. 3. For appreciation of contentions that were raised, a brief resume of the narrations made by the witnesses can be noticed at threshold. 1,000/-, in default of which, he was to suffer rigorous imprisonment for a term of one year. 3. For appreciation of contentions that were raised, a brief resume of the narrations made by the witnesses can be noticed at threshold. Reiterating her earliest version which she rendered before the Police, Neelam Devi (PW 4) states about commission of dacoity in her house in the evening of day of incident, when miscreants who were 20 in numbers having ransacked her house, assaulted her, removed electronic and other articles from her house, relieved her daughter of her ornaments, dealt blows on her, and while retreating confined them in a room, pursuant to which they were rescued by the police. She claimed to have identified appellant during commission of dacoity while cloth covered on mouth of the appellant had dropped. Narrations with similar terms and veins about commission of dacoity in their house, in which there had been identification of the appellant by them had been made also by Tushar Kumar (PW 1), Tunir Kumar (PW 2) and Swati Kumari (PW 3). Prabhat Kumar Singh (PW 6), the Investigating Officer, stated to have rescued house inmates from bath room where they were confined by the miscreants and stated to have recorded fardbeyan of the house mistress in the clinic of Dr. Chandra Bhushan. Though Dr. Chandra Bhushan Prasad (PW 7) stated to have treated Neelam Devi, he acknowledged that he had not issued any injury report. This is all the evidence that has been placed on the record on behalf of the State. 4. The credibility of the prosecution version was sought to be assailed by learned counsel appearing for the appellant who was appointed as amicus curiae by the Court highlighting, inter alia, that the prosecution had chosen to examine only family members and the house mistress, entirely to the /exclusion of other persons who could have been independent witnesses and possibly against whom no eye brow could have been raised. However, since the incident of dacoity was committed inside the house of Neelam Devi, there may not be possibility of other persons witnessing the incident, and that apart, if narration made by Neelam Devi, PW 4 was given any credence, west to her house, there happened to be wall and though there are houses of Jagannath Singh, Ganga Sah and Suresh Singh, that situate at a distance of not less than 1 km, and in that view of the matter too, possibility of these two persons witnessing the incident was remote. Other argument was that if suggestion given to the prosecution witnesses is to carry any significance, as the appellant had not paid hire charge of tractor of husband of the house mistress, there had been false implication, but on this score too I find that except some bald suggestion given to the witnesses, the appellant had neither chosen to examine any defence witness nor there had been evidence to strengthen suggestion given to the prosecution witnesses. Assertion made by Neelam Devi both in her fardbeyan an also in evidence about miscreants having confined house inmates inside the room is strengthened from the evidence of the Investigating Officer also who in no uncertain terms stated about rescuing house inmates from bath room where they were found confined. The identification of the appellant was writ large not only in fardbeyan of Neelam but also in narration made by her in Court. However, there is yet another aspect of the matter which requires consideration. Though Tushar Kumar (PW 1), Tunir Kumar (PW 2) and Swati Kumari (PW 3) claimed identification of the appellant during commission of dacoity, assertion made by these witnesses have been seriously challenged by the defence, there being no parallel statement made by them, during investigation. The Investigating Officer too while refuting assertions made by PWs 2 and 3 states that no such parallel statement about identification of the appellant during commission of dacoity was made by them during investigation and in that backdrop no much reliance can be placed on these two witnesses, they having developed their versions at trial. The Investigating Officer too while refuting assertions made by PWs 2 and 3 states that no such parallel statement about identification of the appellant during commission of dacoity was made by them during investigation and in that backdrop no much reliance can be placed on these two witnesses, they having developed their versions at trial. However, so far Tushar Kumar (PW 1) was concerned, though the Investigating Officer states about witness having not made statement before him during investigation about identification of the appellant during commission of dacoity, tragedy with defence was that no where attention of this witness for such omission was drawn by the appellant. The witness was the best person to either make answer in positive or negative term about assertion made during trial with regard to identification of the appellant during commission of dacoity. If narration made by Tushar Kumar (PW 1) was given credence, there has been identification by two witnesses including that of house mistress about complicity of the appellant during commission of dacoity. 5. Unable to offer meaningful criticism, argument was that since appellant did not bear criminal antecedent, that mitigating circumstances too would merit consideration while judging his culpability in the incident. Contentions are raised that the appellant continued to be in custody since 31st June, 2001, from the day of his surrender in Court. 6. Considering narratives made by two witnesses about identification of the appellant and also there being corroborative evidence of the Investigating Officer, while finding of guilt recorded against the appellant is upheld, sentence awarded to him, in view of his continued incarceration, is reduced to four years. However, 1 would not disturb the finding of the Court below about sentencing appellant to pay fine and also to suffer further imprisonment in default thereof, and with this modification in sentence, the appeal is dismissed. 7. Mrs. Renu Jha, Advocate who appeared as amicus curiae shall get her fee from the Patna High Court Legal Aid Committee. Let copy of first page and last page of the judgment be made over to her.