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2008 DIGILAW 119 (PAT)

Ram Keshwar Choudhary v. State Of Bihar

2008-01-21

SHYAM KISHORE SHARMA

body2008
Judgment SHYAM KISHORE SHARMA, J. 1. The appellants Ram Keshwar Chaudhary, Ram Sharam Chaudhary and Mahatam Chaudhary had preferred this appeal after they were convicted and sentenced by the Sessions Judge, West Champaran, Bettiah vide judgment dated 29.1.1996 and 30.1.1996 respectively in Sessions Trial No. 86 of 1994 whereby the appellants were directed to undergo R.I. for a period of 5 years under sec. 395 of the Indian penal Code. 2. According to the prosecution, the informant has given his fard beyan regarding dacoit in his house in the night of 30th July 1993. According to the informant he was sleeping along with his wife and other family members in the house. In the mid night some unusual sound was heard from the outside, then he wakeup and came out side the house. In the mean while some criminals entered into his house and committed dacoity. They were the local persons because they were using local language and aged about between 18-30 years. In course of dacoity goods worth Rs. 27,000/- were taken away. The informant identified the appellant no.3 in the moon light. On the basis of statement given by the informant the case was registered agasint Mahantam Chaudhary and unknown persons. In course of investigation name of other two appellants also appeared and charge sheet was submitted against them also. On 24.8.1993 the appellant no. 1 was put on T.I.P. in presence of the Judicial Magistrate in which he was identified by the informant. On 21.9.1993 appellant no.2 was put on T.I.P. and was identified by the informant as well as by the witness Santosh Barman. The T.I. P. charts were available on the record (Ext-2 & 2/a)/. After taking cognizance the case was committed to the Court of Sessions where the Charges were explained to the accused persons. They pleaded their innocence and preferred to face the trial. 3. In course of trial the prosecution examined 9 witnesses, they are Birendra Chaudhary PW 1, Niranjan Berman PW 2, Santosh Barman PW 3, Birendra Sarkar PW 4, Amer Kumar Sarkar the informant PW 5. Sri Bipin Bihari the Judicial Magistrate who has held the TIP as PW 6, and Sri Satendra Rajak, the Judicial Magistrate who also held the TIP of another accused as PW7, the Investigating Officer Sri Sidhnath Prasad as PW 8 and Shanti Rani the wife of the informant as PW 9. Sri Bipin Bihari the Judicial Magistrate who has held the TIP as PW 6, and Sri Satendra Rajak, the Judicial Magistrate who also held the TIP of another accused as PW7, the Investigating Officer Sri Sidhnath Prasad as PW 8 and Shanti Rani the wife of the informant as PW 9. In course of trial three witnesses have not supported the prosecution case and they were declared hostile. Those are Birendra Chaudhary PW 1, Santosh Barman PW 3 and Birendra Sarkar PW 4. Some witnesses were formal witness they are PW 6, PW 7, PW 8 and PW 9 is the wife of the informant and PW 5 is the informant. The dacoity was committed in their house so they were the natural witness on the point of occurrence. 4. PW 5 in his evidence has stated that on the date and time of occurrence the accused persons entered into the house and they have committed dacoity. This fact has been supported by the PW 9. These two witnesses have been cross examined in detail and they remained consistent that on the date and time of occurrence a dacoity was committed in their house. As it was moon light so they have identified the accused persons. Their cross examination brought nothing in favour of the appellants. The Judicial Magistrate who have conducted the T.I.P. has stated that the witnesses have identified the real culprits though the T.I. Chart witness have not supported the prosecution case in court but the evidence of the Judicial Magistrate goes to show that the T.I.P. was conducted in their presence. 5. There is overwhelming materials on the record from which the conclusion can be arrived at safely that in the mid night a dacoity was committed in the house of the informant by the appellants. So the prosecution has been able to prove its charge beyond all reasonable doubt. 6. On the question of sentence it has been submitted by the counsel for the appellants that the appellants have remained in custody for various times. It has been pointed out that the appellant no. 1 and 2 have remained in custody for 5 months. Prayer for bail of the appellant no. 3 has been rejected on 26.6.1996 and thereafter prayer for bail was not rejected, therefore, at present the appellant no. 3 might have been released by now. It has been pointed out that the appellant no. 1 and 2 have remained in custody for 5 months. Prayer for bail of the appellant no. 3 has been rejected on 26.6.1996 and thereafter prayer for bail was not rejected, therefore, at present the appellant no. 3 might have been released by now. Therefore, the sentences awarded to the appellants may be modified to the extent that the period undergone by them may be deemed to be sufficient for the ends of justice. 7. I have considered the submission of the learned counsel for the appellants. The case is of 1993. The appellants were in custody for various period during trial. Definitely this is not the case in which the appellant should have been granted benefit of sec. 360 Cr.P.C. or Probation of Offenders Act. The nature of allegation is serious so they deserves substantive punishment and the court below has rightly imposed substantive punishment. But considering the fact that this is the old matter and the appellant have remained in custody for various period no useful purpose shall be served after sending the appellants once more to jail. Accordingly, the sentence awarded to the appellants is modified to the extent that the period undergone by them in custody during investigation, trial and appeal shall be deemed to be sufficient for the ends of justice. 8. In the result this appeal is dismissed with the aforesaid modification in the sentence.