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2007 DIGILAW 1266 (PAT)

Bhola Tamoli v. State Of Bihar

2007-08-02

CHANDRA MOHAN PRASAD

body2007
Judgment Chandra Mohan Prasad, J. 1. Heard both sides. This appeal is against the judgment of conviction and sentence respectively dated 8.10.2004 and 11.10.2004 of the 5th Additional Sessions Judge, Gaya passed in Sessions Trial No. 171/01/67/01 whereby each of the two appellants has been convicted under Sec. 395 of the Indian Penal Code and sentenced to undergo R.I. for ten years and a fine of Rs. 10,000/- and in default of payment of fine R.I. for one year. 2. Vide FI.R. the prosecution was that in the night of 28/29.5.2000 at 2 A.M. 14-15 unknown criminals, variously armed, came to the informant who was sitting in front of Anand Lok Hotel and that they looted cash money of Rs. 60/- from the informant and further by damaging glass of a truck also looted Rs. 15,000/- from the truck driver and some articles were also looted from some betal shop there. The informant claimed that he had seen the face of the criminals in the light of electric bulb lighting there and he can identify them on seeing again. 3. In course of investigation, the ap- pellants were apprehended and they were put on trial. P.W. 1 Uday Singh and RW. 3 Rajeev Kumar identified the two appellants in TIP. On the basis of identification and also on consideration of the evidence of the witnesses, the appellants have been sentenced as above. 4. Prosecution examined as many as 10 witnesses, out of them, P.W.8 Uday Prasad Singh is the I.O. of the case and P.W.9 Sunil Kumar Singh, Judicial Magis- trate, 1st Class, had conducted the TIP. 5. P.W. 1 Uday Singh, P.W. 2 Mahendra Singh, RW. 3 Rajeev Kumar, P.W. 4 Chhotan Mian, RW. 5 Krishna Nandan Singh, P.W. 6 Birendra Kumar, P.W. 7 Dharmendra Kumar and P.W. 10 Munna Sharma (informant) are the witnesses who supported the prosecution case on the point of occurrence. And out of six witnesses P.W. 1, P.W. 3 are the two witnesses who had identified the two appellants in TIP. 6. During hearing Mr. Ashok Kumar Mishra, appearing for the appellant no. 2 Nagendra Pandey did not challenge the conviction and he argued on the point of sentence only. 7. Mr. And out of six witnesses P.W. 1, P.W. 3 are the two witnesses who had identified the two appellants in TIP. 6. During hearing Mr. Ashok Kumar Mishra, appearing for the appellant no. 2 Nagendra Pandey did not challenge the conviction and he argued on the point of sentence only. 7. Mr. Vivek Kumar Singh, learned Amicus Curiae appearing for the appellant no.1 Bhola Tamoli raised only one question during hearing that in this case the T.I.P. has been held after 44 days of the arrest of the appellant. 8. Mr. S.N. Prasad, the learned A.P.P. referring to the evidence of the witnesses submitted that the witnesses have proved the occurrence. He also submitted that the T.I.P. was held according to the rules and the appellants identified when they were kept with other nine persons of similar description. It was also submitted that af- ter apprehension of the appellant some- time was taken in issuing notices to the witnesses for their appearance and then they appeared, and on obtaining orders of the Court the T.I.P. was conducted. 9. Considering the evidence of the witnesses as adduced before the trial court and the other circumstances of the case, I feel that the delay in holding the T.I.P. does not discredit the case of prosecution on the question of identification as made by P.Ws. 1 and 3. On going through the evidence of the witnesses as adduced by the prosecution, I find that the prosecution has been able to prove the charge beyond the shadows of reasonable doubts. There- fore, the conviction of the appellants under Section 395 of the Indian Penal Code as awarded by the trial court is upheld. 10. Challenging the quantum of the sentence, the learned counsel for the ap- pellants argued that in the occurrence, nobody had received any injury and that there is no criminal antecedents of the appellants. The learned counsel submitted that the sentence passed on the appellants is excessive. Considering the facts and circumstances of the case, I feel that a sentence of R.I. for eight years and a fine of Rs. 10,000/- and in default of payment of fine will meet the ends of justice. Hence, each of the two appellants is accordingly sentenced. In case of non- payment of fine, each of the appellants will undergo R.I. for one year only. 11. 10,000/- and in default of payment of fine will meet the ends of justice. Hence, each of the two appellants is accordingly sentenced. In case of non- payment of fine, each of the appellants will undergo R.I. for one year only. 11. Thus, the appeal is dismissed with modification in the sentence as indi- cated above.