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2017 DIGILAW 200 (JHR)

Arjun Parahiya v. State Of Bihar

2017-01-30

RONGON MUKHOPADHYAY

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JUDGMENT Mr. Rongon Mukhopadhyay, J. – Heard Mr. Anurag Kashyap, learned counsel appearing for the petitioner and learned A.P.P. for the State. 2. This application is directed against the Judgment and order of conviction and sentence dated 07.10.1999 passed by the learned 7th Additional Sessions Judge, Palamau at Daltonganj, in Cr. Appeal No. 83 of 1997 whereby and where under the appeal preferred by the petitioner against the Judgment and order of conviction and sentence dated 29.05.1997 passed by the learned Chief Judicial Magistrate, Garhwa in G.R. Case No. 697 of 1995 convicting the petitioner for the offence punishable u/s 394 of the I.P.C. and sentencing him to undergo R.I. for three years have been affirmed. 3. It has been submitted by the learned counsel for the petitioner that there are vital contradiction in the statement of the prosecution witnesses with respect to the identification of the petitioner. It has been submitted that P.W.-1, 2, 3 and 4 are supposedly the eye witnesses to the occurrence. Learned counsel submits that the Investigating Officer of the case has not been examined. Learned counsel submits that there is no independent witness produced by the prosecution in support of its case. Learned counsel further submits that the petitioner has been implicated merely on a previous issue that there was some altercation with respect to demand of money which ultimately led to the institution of the case. It has been submitted that the petitioner has remained in custody for a period of 1 year and 7 months. 4. Learned A.P.P. for the State has opposed the prayer made by the petitioner. 5. It appears that the First Information Report was instituted wherein it was alleged that on 6.12.1995 the accused persons had entered into the house of the informant and had assaulted the wife of the informant and also demanded money from them. It has been alleged that the informant was also assaulted and on raising an alarm the villagers had gathered and they could apprehend 2 of the culprits who were lynched to death. It has also been alleged that some of the accused persons namely Luta Singh and the present petitioner somehow managed to flee away from the place of occurrence. After completion of investigation charge-sheet was submitted against the petitioner and after cognizance was taken, the case was transferred to the learned Judicial Magistrate 1st Class for disposal. It has also been alleged that some of the accused persons namely Luta Singh and the present petitioner somehow managed to flee away from the place of occurrence. After completion of investigation charge-sheet was submitted against the petitioner and after cognizance was taken, the case was transferred to the learned Judicial Magistrate 1st Class for disposal. It appears that in course of trial the prosecution examined as many as 7 witnesses in support of his case. P.W.-1, 2, 3 and 4 are all members of the same family including the informant. P.W.5 was declared hostile by the prosecution and so far as P.W.6 is concerned he has also tendered by the prosecution. P.W.7 is a formal witness. Although, learned counsel for the petitioner has drawn the attention of the Court to the discrepancy in the evidence of P.W. 1 and 2 with that of P.W.3 with respect to the identification of the petitioner of having played a part in committing the offence but it appears from the evidence that the petitioner was known prior to the incident to P.W.-1, 2, and 3. Although, P.W.-1, and 2, have stated that the accused persons had entered into the house covering their faces with a gamcha but P.W.3 has not supported the said fact. P.W.1 who is the wife of the informant had identified the petitioner and so had P.W. 2. Such identification led the petitioner to be a named accused in the First Information Report instituted by P.W.1. Since the manner of occurrence and the role played by the petitioner has been sufficiently proved by the prosecution witnesses non-examination of the Investigating Officer in such circumstances, would not prove fatal to the prosecution. There being consistent evidence on record which proves the involvement of the petitioner in the commission of the offence and which has been properly appreciated by the learned trial court as well as by the learned appellate court, I am not inclined to interfere in the order of conviction which has been passed against the petitioner and accordingly, this application stands dismissed. 6. So far as the challenge which has been made to the sentence is concerned however it appears that the petitioner has remained in custody for a total period of 1 year and 7 months out of a maximum sentence of three years. 6. So far as the challenge which has been made to the sentence is concerned however it appears that the petitioner has remained in custody for a total period of 1 year and 7 months out of a maximum sentence of three years. The case was instituted in the year 1995 and the petitioner is facing the rigors of the prosecution case for the last more than 21 years. Considering the detention of the petitioner and the number of years it has consumed to finally conclude the prosecution case the period of sentence awarded to the petitioner is modified to the period already undergone. 7. This application is therefore dismissed with the aforesaid modification in sentence.