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2012 DIGILAW 182 (PAT)

Binod Kumar Sah v. State of Bihar

2012-01-31

MANDHATA SINGH

body2012
JUDGMENT Mandhata Singh. J.-All the above Criminal Appeals are being disposed of by a common judgment as they arise out of Sessions Trial No. 263 of 1995. 2. Fardbeyan of one Ratan Kumar Agrawal has been made basis for F.I.R. which, in short, is that on 14.12.1994 at about 7.00 pm., he was sitting in his gaddi situated in front of his house along with his cashier Ratan Kumar Jain and other business men including Madan Chand Pugalia, Upendra Bhagat and two others. His wife, mother, father, uncle, aunt and other family members were sitting inside his house. In the meantime, about 14-15 dacoits entered his gaddi armed with pistol threatened them on the point of pistol. Madan Chand Pugalia was assaulted by means of butt of pistol on his mouth which broken his front teeth. They snatched Rs. 1000/- from the pocket of Upendra Bhagat, Rs. 2000/- from Cashier and taken away Rs. 1744/- from galla bearing endorsement on one note about Rs. 1744/-. There was light of generator facilitating to identify dacoits by face. 3. Further, statement of the informant is that 8-10 dacoits entered the house and on the point of pistol, looted household articles including cash, jewellery and Yasika Camera which they took away also. There is further description of articles and manner in which dacoits acted in course of loot. Further, it is stated that after committing dacoity some of dacoits fled away towards East, some towards West through railway line and some towards South with stolen articles. On alarm, public from vicinity and constable on duty with arms chased dacoits in direction of their fleeing. Police Personnel returned with two dacoits along with some looted ornaments and pistol. They were identified as Johny @ Md. Aftab Alam and Manoj as disclosed by them. They further disclosed name of some of their accomplices showing appellant Kamleshwari as ring leader. 4. In course of investigation, some more material was collected by the I.O. including apprehension of Binod Kumar Sah, appellant of Cr. Appeal No. 128 of 1999 and Bachchu @ Jai Prakash Kurail, appellant of Cr. Appeal No. 157 of 1999 along with Rs. 715/- and Rs. 430/- in cash respectively. 5. 4. In course of investigation, some more material was collected by the I.O. including apprehension of Binod Kumar Sah, appellant of Cr. Appeal No. 128 of 1999 and Bachchu @ Jai Prakash Kurail, appellant of Cr. Appeal No. 157 of 1999 along with Rs. 715/- and Rs. 430/- in cash respectively. 5. After concluding the trial, case is ended in conviction and sentence to all the three accused-appellants for the offence under Section 395 read with Section 397 of the I.P.C. and 412 of the I.P.C. 6. In all 19 witnesses are examined in the case. They are PW 1 Chainrup Bathra, PW 2 Bijendra Prasad Dev, PW 3 Ratan Lal Agrawal, PW 4 Ratan Lal Jain, PW 5 Shashi Bhushan Prasad Gupta, PW 6 Hari Narayan Singh, PW 7 Pravin Kumar Agrawal, PW 8 Sanjay Kumar Jhabak, PW 9 Ashok Kumar Agrawal, PW 10 Jai Chand Daga, PW 11 Hari Ram, PW 12 Raj Dev Singh, PW 13 Rama Shankar Singh, PW 14 Sahdev Thakur, PW 15 Saroj Devi, PW 16 Mool Chand Golchha, PW 17 Motilal Agrawal, PW 18 Satya Narayan Agrawal, PW 19 Kriti Narayan Paswan, I.O. of the case. 7. Of them, PW’s 1, 2, 5, 6, 8. 9, 10 and 11 are seizure list witnesses. Of them, PW 1 and PW 2 are for recovery of jewellery from accused-appellant Kamleshwari Yadav. PW 8 and PW 11 are for recovery from accused-appellant Bachchu @ Jai Prakash Kurail. PW 9 for recovery from Binod Kumar Sah. Articles recovered from appellants or other accused persons were put on T.I. Parade and some of the articles were identified also. On this point, PW 12 is Raj Dev Singh, B.D.O., who conducted T.I. Parade and PW 3 and PW 18 are the witnesses who have identified some of the articles recovered from accused-appellant Kamleshwari Yadav as looted property. 8. It is submitted on behalf of the learned counsel and amicus curiae for accused-appellants Binod Kumar Sah and Bachchu @ Jai Prakash Kurail that the only material appeared in the case is recovery of Rs. 715/- and Rs. 430/- in cash from their possession which also was not identified in T.I. parade of articles conducted in the case and keeping• of such amount is usual to commers also that never can be connected as looted cash/articles. 715/- and Rs. 430/- in cash from their possession which also was not identified in T.I. parade of articles conducted in the case and keeping• of such amount is usual to commers also that never can be connected as looted cash/articles. It is made clear that none of the accused-appellants or any one is named in the F.I.R nor they have been put on T.I. parade for their identification. 9. In discussed circumstances, I agree with the learned counsel and learned amicus curiae that there is no material at all against accused-appellants Binod Kumar Sah and Bachchu @ Jai Prakash Kurail for their conviction in the case which has not been taken into consideration by the Trial Court. 10. As discussed above, witnesses are there on the point of recovery of articles including jewelleries from Kamleshwari Yadav which has been put on T.I. parade and identified by PW 3 and PW 18. Finding no deviation, rightly the amicus curiae for this appellant pressed the sentence only that circumstances are there to show that a liberal view should be taken on that point referring taking place of the incident in the year 1994, trial continued till 1999 and appeal is being heard in the year 2012, conviction is basing recovery from appellants possession but he was not put on T.I. parade for identification while claim was made in the F.I.R. that there was sufficient light of generator in which dacoits were identified by face and two of the seizure list witnesses identified their signature only on seizure list without accepting recovery in their possession. In my view also, above discussed circumstance makes entitle these appellants for liberal view on the point of sentence. 11. On the observations made above, evidence on record and circumstances of the case. Cr. Appeal No. 128 of 1999 and Cr. Appeal No. 157 of 1999 are allowed. Conviction and sentence of accused-appellants Binod Kumar Sah and Bachchu @ Jai Prakash Kurail passed by the 1st Addl. Sessions Judge, Araria are set aside. They are acquitted of their respective charges, discharged from their liabilities of bail bonds and set at liberty. 12. Cr. Appeal No. 136 of 1999 is dismissed modifying the sentence only. In the result, conviction is affirmed and sentence is modified and minimized to 7 years for all the offences. Sessions Judge, Araria are set aside. They are acquitted of their respective charges, discharged from their liabilities of bail bonds and set at liberty. 12. Cr. Appeal No. 136 of 1999 is dismissed modifying the sentence only. In the result, conviction is affirmed and sentence is modified and minimized to 7 years for all the offences. He (appellant) is entitled for set off of the period undergone during the course of trial or appeal. He is directed to surrender before the Court below to serve rest of the sentence. Bail bond of appellant namely, Kamleshwari Yadav is cancelled. Trial Court is also directed to take effective initiative for his arrest. 13. Let copy of the first page and last page of the Judgment be handed over to the learned amicus curiae. 14. Office is directed to send the records along with copy of this Judgment to the Trial Court. Appeal Nos. 128 & 157/99 allowed. Appeal No. 136/99 dismissed.