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2007 DIGILAW 518 (PAT)

Madhu Sahni v. State Of Bihar

2007-03-13

INDU PRABHA SINGH

body2007
Judgment I.P.Singh, J. 1. The sole appellant has been convicted under sec. 395 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for seven years. 2. The prosecution case, in brief, is that the marriage of two sons of the informant, Ramanand Pandey were fixed for 29.4.1977 and 2.5.1977. To attend the marriage his son Suresh Pandey had reached with his family at about 8 P.M. on 25.4.1977 and about 10 P.M. the family took meal and went to sleep. It has been further alleged that the informant was sleeping on the northern room situated on his eastern Osara and his son, Suresh Pandey was sleeping in the open hall situated at the Darwaja. At about 11.45 P.M. the dogs started barking at which he woke up. At the sound of beating of the Darwaja, he lit his torch and saw that some persons were thrashing at the closed door which was connected to the ladies portion of the house. It has been further alleged that with the lighting of the torch, five persons came to him and one of them directed him to put-off the torch but the informant did not oblige. At that, one dacoit hit him 3/4 times with iron rod. The. dacoit snatched away his wristwatch. It has been further alleged that in the light of torch he identified one Nageshwar Pandey and one Rama Shankar Pandey of the village. The dacoits looted away the articles from the box kept in his room by breaking its hook. They also took away one Khukhri kept below the belding. Thereafter they went to his son Suresh Pandey, assaulted him with iron rod and took away his wrist-watch. In the meantime, 7-8 dacoits entered into the womenfolks portion of the house by breaking open the door and entered one by one into every room and looted articles kept in the boxes including cash, clothes and ornaments. They also took away ornaments which the women folk were wearing. One dacoit had also asked his daughter, Asha, to handover, Kulhari, keys and money. They were all armed with countrymade pistol. Danda and torches. After the loot, they fled away towards east. On Hulla the villagers had assembled there. The informant had claimed that they could identify the dacoits as they had seen them in the light of the torch. One dacoit had also asked his daughter, Asha, to handover, Kulhari, keys and money. They were all armed with countrymade pistol. Danda and torches. After the loot, they fled away towards east. On Hulla the villagers had assembled there. The informant had claimed that they could identify the dacoits as they had seen them in the light of the torch. The informant has given list of a number of ornaments which the dacoits had taken away. On the basis of the aforesaid statement a formal F.I.R. was drawn up. After completion of investigation the police submitted charge-sheet against the accused persons. Thereafter cognizance was taken and the Cuse was committed to the court of session for trial. 3. The appellant pleaded not guilty and has stated that he has been falsely implicated in this case due to enmity. 4. The prosecution in order to prove its case has examined altogether 8 witnesses. P.W. 1, Ramanand Pandey is the informant of this case. P.W. 2, Shankar Kumar Sinha was the Assistant Jailor in the Central Jail at Muzaffarpur. P.W. 3, Suresh Prasad Singh is a formal witness. P.W. 4, Suresh Pandey is the son of the informant. P.W. 5 is Raghubansh Prasad Singh. P.W. 6 is Suresh Prasad Sahi, P.W. 7, Janardan Choudhary is a formal witness. He has proved T.I. Chart (Ext. 3/ 2). P.W. 8 is Ful Kuar Rai. He is Judicial Magistrate and has conducted the T.I.P. of the suspects. 5. P.W. 1, Ramanand Pandey, the informant has fully supported the case of the prosecution as stated in the Fardbeyan. According to him marriage of his two sons were fixed for 29.4.1977 and 2.5.77. He has stated that his son Suresh Pandey alongwith his family has come from Bokaro. After taking their meal they were sleeping in two different rooms. He was sleeping on the Osara and Suresh Pandey was sleeping in the open hall. He has further stated that he woke up on the sound of barking of the dog. He has further stated that at the sound of the thrashing on the main door, he put on his torch and saw 14/15 dacoits. Out of which 5 to 6 dacoits came to him and ordered him to put-off the light otherwise they would fire. He has further stated that at the sound of the thrashing on the main door, he put on his torch and saw 14/15 dacoits. Out of which 5 to 6 dacoits came to him and ordered him to put-off the light otherwise they would fire. He did not do so and he continued with his torch, at which one dacoits aimed his gun at his chest and another dacoits assaulted him with iron rod. One dacoit took out the Khukhri from beneath his bed and the dacoit who had assaulted him took away his torch and his wristwatch. The dacoits broke open one wooden box kept in the room and took away the articles. Thereafter one dacoit stood guard and others went to his son Suresh Pandey and caused him head injury with a rod and snatched away his Ornoga wrisiwatch. Thereafter the dacoits entered into the house by breaking open the door. After dacoity, his family members told that dacoits had broke open the doors or their locks, in different rooms, took out the boxes and broke those open in the Osara and took away the articles such as ornaments, clothes, camera etc. According to him they also took away the ornaments which the womenfolk were wearing. By that time about two thousand persons had assembled there and the dacoits fled away. Thereafter in the morning at about 8 A.M. the police came and recorded his statement. 6. P.W. 4, Suresh Pandey. son of the informant has fully supported the case of the prosecution. According to him he was sleeping in the house and when he woke up on hearing noise of breaking of the door. 5 to 6 dacoits came to him and one of them hit him on the head with iron rod as also on his right Pakhura. They snatched away his watch. He has further stated that he saw the faces of dacoits in the light of the torch of his father as well as in the light of the torch held by the dacoits. He has further stated that some dacoits entered into the house and looted away the article by breaking the boxes, such as ornaments, cloths and cash valued at Rs. 2,00,000/-. After looting away the article, they fled away. He has further stated that he had identified one dacoit who had participated in the dacoity. 7. He has further stated that some dacoits entered into the house and looted away the article by breaking the boxes, such as ornaments, cloths and cash valued at Rs. 2,00,000/-. After looting away the article, they fled away. He has further stated that he had identified one dacoit who had participated in the dacoity. 7. P.W. 8 is Shri Phool Kuer Rai, Judicial Magistrate. He has conducted the T.I.P. of the other accused persons. It appears from the record that Shri Ekbai Singh, the Judicial Magistrate who conducted the T.I.P. of the suspects in jail has expired. 8. Learned counsel for the appellant has submitted that the learned court below has failed to appreciate that in the T.I. Chart concerning the identification of the appellant, nothing has been mentioned in the column made for mentioning the description with regard to role of the suspect in the alleged commission of the offence during which the suspect was identified by the witnesses. The court below should have given the benefit of doubt to the appellant on account of the aforesaid lacuna on the part of the prosecution. 9. As regard to the T.I.P. of the appellant, Madhu Sahni, it has been disputed on the ground that no specific overt act during dacoity has been mentioned. The identification chart simply mention that three witnesses have identified him. From the deposition of P.W. 1 it appears that when he woke up he flashed his torch and in that light he identified the dacoits. In such situation of shock and trauma if a person even once has seen a person shall remember him for a long period. As such the plea of the learned counsel about non-attribution of any overt act at the time of commission of dacoity does not cut much ice. Even the submission of the learned counsel about the means of identification has been explained in the deposition of the informant who has clearly stated that only after he flashed his torch, the same was snatched by the dacoits. As far as non-examination of the I.O. is concerned it has not prejudiced the case of the prosecution as no contradiction has been shown in the evidence of the witnesses that the witnesses have stated something different to the I.O. then they stated in the court. As far as non-examination of the I.O. is concerned it has not prejudiced the case of the prosecution as no contradiction has been shown in the evidence of the witnesses that the witnesses have stated something different to the I.O. then they stated in the court. I have carefully gone through the judgment under appeal from which it would appear that the learned court below has properly taken into consideration the evidence on record and has come to the conclusion that the charges have been proved against the appellant and accordingly he convicted the appellant for the offence punishable under sec. 395 of the Indian Penal Code. I do not find any reason to interfere with the conviction of the appellant. 10. Coming to the question of sentence the learned counsel for the appellant has submitted that the occurrence took place three decades ago and the appellant has been amply harassed and punished during the prolonged litigation. He is an old person aged about 70 years and he has remained in custody for about six years. As such some lenient view may be taken while awarding sentence to the appellant. 11. Keeping in view the submission so raised, I am of the view that it will be expedient in the interest of justice if the sentence of the appellant is reduced to the period he has already undergone in jail. 12. With the aforesaid modification in the sentence this appeal is dismissed.