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2018 DIGILAW 2793 (JHR)

Nabi Sheikh v. State Of Jharkhand

2018-12-18

H.C.MISHRA, RATNAKER BHENGRA

body2018
JUDGMENT 1. Since all these three appeals arise out of the same impugned Judgment, they have been heard together, and are being disposed of by this common Judgment. 2. Heard learned counsels for the appellants and learned counsel for the State. 3. The appellants in all these appeals, are aggrieved by the impugned Judgment of conviction dated 29.01.2009 and Order of sentence dated 30.01.2009, passed by the learned Additional Sessions Judge, FTC, Sahibganj, in S.C. No. 69 of 2007, whereby, the appellants have been found guilty and convicted for the offences under sections 395 and 397 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants have been sentenced to undergo R.I. for life, with fine of Rs. 25,000/- each, for the offence under section 395 of the Indian Penal Code, and R.I. for 10 years each, for the offence under section 397 of the Indian Penal Code, and both the sentences were directed to run concurrently. 4. The case relates to train dacoity, in which these appellants have been made accused in connection with Bharharwa GRPS Case No. 19 of 2006, which was instituted against unknown persons. After investigation, charge-sheet was submitted against the appellants, who ultimately faced the trial, and were convicted and sentenced by the Trial Court below. 5. Though there are some contradictions in the evidence of the prosecution witnesses examined in Trial Court below, but the learned counsels for the appellants have confined their arguments only to the sentence of the appellants. They have submitted that the evidence of the I.O., would show that from the appellant Nabi Sheikh only Rs. 100/- was recovered, from the appellant Shamsul Sheikh only Rs. 120/- was recovered and from the appellant Yousuf Sk., only Rs. 110/- was recovered. From the appellants Nausar Sheikh and Asruddin Sheikh, there is no recovery at all. It is submitted by the learned counsel that the appellants from whom there was recovery, have remained in custody for more than 10 years, whereas the other appellants, from whom there was no recovery, they are on bail, and they have also been sufficiently punished. 6. It is pointed out by the learned counsels for the appellants that appellant Asruddin Sheikh was granted bail by this Court, vide order dated 25.03.2010, passed in I.A. No. 291 of 2010, in his Cr. 6. It is pointed out by the learned counsels for the appellants that appellant Asruddin Sheikh was granted bail by this Court, vide order dated 25.03.2010, passed in I.A. No. 291 of 2010, in his Cr. Appeal (DB) No. 216 of 2009, as he was prima facie found to be less than 17 years of age, on the date of occurrence. It is pointed out by the learned counsels from the evidence of the I.O., P.W.-10 Sri Niwas, that this appellant was arrested on 23.11.2006, and since he has been granted bail in the month of March 2010, he has remained in custody for more than three years. So far as appellant Nausar Sheikh is concerned, it is pointed out that he was arrested on 19.11.2006, and there was no recovery from him and he was granted bail by order dated 02.09.2011, passed in I.A. No. 2575 of 2010 in his Cr. Appeal (DB) No. 359 of 2009, by this Court. He was granted bail on 19.4.2008, during trial, and again taken into custody on the date of the impugned Judgement, i.e., 29.1.1009. Thus, even this appellant has remained in custody for approximately about four years. Learned counsels, accordingly, confined their arguments only to the sentence of the appellants, submitting that all of them have been sufficiently punished. 7. Learned counsel for the State, on the other hand, however, has opposed the prayer, submitting that the appellants have been rightly convicted and sentenced by the Trial Court below. 8. Sans the other evidence of the record, as there is no challenge to the impugned Judgement of conviction passed by the Trial Court below, we have perused the evidence of P.W.-10 Sri Nivas, the I.O., in the case. His evidence shows that the appellants Nabi Sheikh and Shamsul Sheikh, who are still in custody, were arrested on 22.11.2006 and from their person, Rs. 100/- and Rs. 120/- respectively, were recovered. The L.C.R. shows that they were in custody during trial. As such, both these appellants are in custody for more than 12 years now. So far as the appellant Yousuf Sk. is concerned, he was also arrested on 22.11.2006, and there was recovery of Rs. 110/- from him. This appellant was granted bail by order dated 17.07.2018, passed in I.A. No. 5587 of 2018 in his Cr. As such, both these appellants are in custody for more than 12 years now. So far as the appellant Yousuf Sk. is concerned, he was also arrested on 22.11.2006, and there was recovery of Rs. 110/- from him. This appellant was granted bail by order dated 17.07.2018, passed in I.A. No. 5587 of 2018 in his Cr. Appeal (DB) No. 353 of 2009, taking into consideration that he had served more than 11 years of sentence. So far as appellant Nausar Sheikh is concerned, he was arrested on 19.11.2006, there was no recovery from him and he was granted bail by order dated 02.09.2011, passed in I.A. No. 2575 of 2010 in his Cr. Appeal (DB) No. 359 of 2009, by this Court. The L.C.R. shows that during trial, he was released on bail on 19.4.2008, and again taken into custody on the date of the impugned Judgement, i.e., 29.1.1009. Thus, even this appellant has remained in custody for approximately about four years. 9. Taking into consideration the period of custody of these appellants, and without entering into the merits of the case, we are of the considered view that the appellants Nabi Sheikh and Shamsul Sheikh, (appellants in Cr. A. (DB) No. 216 of 2009), and Yousuf Sk., (appellant in Cr. A. (DB) No. 353 of 2009) from whom there was recovery of a paltry amount of money, have remained in custody for more than 10 years each, whereas appellant Nausar Sheikh, (appellant in Cr. A.(DB) No. 359 of 2009) has also remained in custody for about four years, though there was no recovery from him, and so far as the appellant Asruddin Sheikh, (appellant in Cr. A. (DB) No. 216 of 2009) is concerned, he was prima facie found to be below 17 years of age, and has also remained in custody for about three years, though there was no recovery from him as well. A. (DB) No. 216 of 2009) is concerned, he was prima facie found to be below 17 years of age, and has also remained in custody for about three years, though there was no recovery from him as well. Taking into consideration the recovery of the paltry amounts from the three appellants, who have remained in custody for more than ten years, as also taking into consideration the period of custody of those appellants from whom there was no recovery at all, we are of the considered view that all these appellants have been sufficiently punished for the offences for which they have been convicted, and the interest of justice would be met, if they are sentenced to the period already undergone by them in imprisonment, subject to the maximum sentence of R.I. for ten years. 10. Accordingly, maintaining the conviction of these appellants for the offences under sections 395 and 397 of the Indian Penal Code, by the impugned Judgment of conviction dated 29.01.2009, passed by the learned Additional Sessions Judge, FTC, Sahibganj, in S. C. No. 69 of 2007, we hereby, modify the Order of sentence dated 30.01.2009, passed by the Trial Court below, setting aside the sentence imposed by the Trial Court, and sentencing the appellants Nabi Sheikh, Shamsul Sheikh, and Yousuf Sk., to R.I. for ten years each, and the appellants Asruddin Sheikh and Nausar Sheikh, to the period already undergone by them in imprisonment. 11. The appellants Nabi Sheikh and Shamsul Sheikh, (in Cr. Appeal (DB) No. 216 of 2009), are in custody for more than ten years, and they are directed to be released and set at liberty forthwith, if their detention is not required in any other case. Remaining appellants, Asruddin Sheikh (in Cr.A.(DB) No. 216 of 2009), Yousuf Sk., (in Cr.A. (DB) No. 353 of 2009), and Nausar Sheikh (in Cr.A. (DB) No. 359 of 2009), are on bail after serving sufficient punishment, and they are accordingly, discharged from the liabilities of their respective bail bonds. 12. All these three appeals are accordingly, dismissed, with modification in the Order of sentence as aforesaid. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.