JUDGMENT : RATNAKER BHENGRA, J. 1. When the matter is called out, no body appears on behalf of the appellant. Accordingly, Ms. Leena Mukherjee, Advocate is appointed as Amicus Curiae to assist the court in this case. Heard both the sides. 2. The present appeal is directed against the judgment of conviction and order of sentence dated 25.07.2003 passed by learned 3rd Additional Sessions Judge, Chaibasa in Sessions Trial No. 75 of 1992, whereby and whereunder the learned court below convicted the appellant under section 379 of the Indian Penal Code and sentenced him to R.I. for one year with fine of Rs. 10,000/-and in default of payment of fine further R.I. for six months was imposed. It was further ordered that fine realised be paid to the victim. 3. The prosecution case ,in brief, as per the fardbeyan of the informant Risa kui PW-1, wife of Renso Sinku PW-2, is that her son Shambhu Sinku was to be married and for that her husband along with his grandson (nati) namely Ramchandra Sinku had gone to Hatgamharia bazar on the last Monday (3-6-91) and purchased three goats and kept it in the house of the relative of Ram Chandra. Then on Tuesday her husband along with Ram Chandra went to Noamundi and withdrew Rs. 30,000/-from his account of Canara Bank. At 2 O'clock in the afternoon when they were returning home and reached near the boundary of his village then Ramchandra told her husband that nana do not keep such large amount of money in the house and to give him and he will keep it in his house. Her husband gave the money to Ramchandra and after coming back home narrated the above facts to her. After sometime Ram Chandra took her husband two hundred yards east of her house in his field and gave him to drink some poisonous substance as a result her husband became unconscious. In the evening Ram Chandra came to the house of the informant and took meal and on query he told that nana is talking with the villagers with regard to marriage. The informant then slept in the night. When her husband did not return in the night, then in the morning of Wednesday she sent her nephew Bundu Sinku, Patro Sinku and Gudra Tanti in search of her husband. The informant then slept in the night. When her husband did not return in the night, then in the morning of Wednesday she sent her nephew Bundu Sinku, Patro Sinku and Gudra Tanti in search of her husband. At about 11 O'clock in the day they brought her husband who was a little bit conscious and had discharged stool in his clothes. The villagers, namely, Latu Maharana, Soben Bobanga, Bishwanath Laguri, Ghanshyam Laguri etc, assembled there and in their presence her husband stated that Ram Chandra showed him the fear of unsocial elements and cheated his Rs. 30,000/-, retiral benefit from TISCO, which he had withdrew. Ram Chandra took the said money at the boundary of his village and in order to kill him he made him drink the poison as a result he became unconscious. Thereafter, informant's husband was treated at house, then to Jaintgarh Hospital and lastly to Noamundi Hospital. 4. On the basis of the fardbeyan of the informant Jagarnathpur police station case no. 20 of 1991 was registered against the accused under section 328 and 406 of I.P.C. After completion of investigation charge sheet was submitted and the cognizance of the offence was taken and the case was committed to the court of sessions. Charges were framed under sections 328, 406 and 307 of IPC against the accused and after conclusion of trial accused or appellant herein was convicted and sentenced as aforesaid . Hence, this appeal. 5. Prosecution in order to its prove its case has examined altogether 11 witnesses in support of its case. PW-1 Risa Kui is the informant and wife of victim and PW-2 is Renso Kui, the victim himself. PW-4 is Bishwanath Laguri, PW-6 is Soban Bobonga and PW-11 is Khudra Tanti. The remaining witnesses PW-3, PW-7, PW-8, PW-9 and PW-10 were declared hostile. 6. P.W. 1 Risa Kui is the informant of the case and the wife of victim. She has stated in her examination-in-chief that on the day of occurrence at about 8/9 O'clock in the night she was in her house. Her husband and Ramchandra came home and then Ram Chandra took her husband towards the field saying that they are tired and so they will take English Wine. Her husband drank wine and lied in the field and Ramchandra fled away. Her husband did not return home in the night. Her husband and Ramchandra came home and then Ram Chandra took her husband towards the field saying that they are tired and so they will take English Wine. Her husband drank wine and lied in the field and Ramchandra fled away. Her husband did not return home in the night. On next morning she searched for him and found him fallen in field and he was in some sense. Jamadar Sinku, Hemlal Sinku, Gudrai Tanti, etc. carried her husband to her house. When her husband regained senses he told that Ramchandra made him to drink poison and Ramchandra took away Rs. 30,000/-which he had brought. She informed the manki Harish Chandra Laguri and he came to her house and he told that her husband will not survive and he should be taken to Namundi Hospital for treatment. Bishwanath Laguri, Saban Laguri, Soban Bobanga took her husband to Noamundi Hospital. She did not accompany them. Informant further stated that police came to her village and recorded her statement in presence of Soban Laguri and manki. In a question put by the court she stated that her husband had withdrawn the money from Noamundi Bank and the said passbook is in her house. In her cross-examination she stated that Ramchandra is her nati in relation of Village. After arrival of her husband, Ramchandra came to her house and she had heard the conversation between the two. While her husband was going with Ram Chandra, she questioned him to which her husband replied that he will not stay here because the dacoit will kill him and both went away. 7. P.W. 2 Renso Sinku is the victim and husband of informant, who is a retired Tisco Employee. He has stated in his examination-in -chief that on the year of occurrence his son was to be married. He took 900/-rupees from his house and purchased goats and kept it in the village Amdiha and went to Noamundi with Ramchandra to his son Shambhu and stayed there in the night. Next day he withdrew Rs. 30,000/-from his account from Noamundi Bank and came home with Ramchandra. When they reached home Ramchandra told him that dacoit will loot his money and kill him and hence leave the place and to take English Wine. The money was with him. Next day he withdrew Rs. 30,000/-from his account from Noamundi Bank and came home with Ramchandra. When they reached home Ramchandra told him that dacoit will loot his money and kill him and hence leave the place and to take English Wine. The money was with him. On the saying of Ramchandra both of them went in the field where Ramchandra made him drink English Wine and after taking wine he began to discharge stool and urine and also began vomiting and thereafter he became unconscious and fell down. Next morning the villagers and Gudra Tanti saw him fallen and on hulla many persons came there but since he was not in his senses so he could not identify them. They took him to his house and then to Noamundi Hospital by Motor Car with the help of Sawpan, Bishwanath, etc. where he was treated. In reply to the question put by the Court he stated that once this case was decided in which the accused was acquitted and against that judgment he appealed in the High Court and from the High Court this case was ordered to be tried again. In his cross-examination PW-2 stated that police enquired him at Noamundi Hospital. When he regained his senses he gave his statement to police. He did not tell to the police that he narrated about the occurrence to his wife. Prior to this occurrence he used to take haria. Haria and English wine are two and the different things and English wine is more intoxicating. While he was going to withdraw his money at Noamundi, Ramchandra followed him. The account no. of his bank is 212. He gave the pass book to police to see and the pass book is in his house. In reply to a Court question he stated that when he went to the Hospital he had no money with him. Ram Chandra made him to drink English Wine due to which he lost his senses and Ram Chandra took away money from him. 8. P.W. 4 Bishwanath Laguri has stated in his evidence that the condition of Renso was bad and so he informed the matter to manki and then manki came to the house of Renso and gave his report to him and told him to give it at the police station. He delivered the report in the police station. 8. P.W. 4 Bishwanath Laguri has stated in his evidence that the condition of Renso was bad and so he informed the matter to manki and then manki came to the house of Renso and gave his report to him and told him to give it at the police station. He delivered the report in the police station. Renso also told him that Ram Chandra made him to drink poison pretending it to be an English Wine and took Rs. 30,000/- from him. 9. P.W. 6 Soban Bobanga has stated in his evidence that Renso Sinku told him that Ram Chandra Sinku told him he will not feel fear of dacoit, if he takes this medicine and he made him to drink that medicine and took his 30,000/- rupees and fled away. 10. P.W. 7 Soban Laguri has stated that occurrence took place 10/12 years ago. He has a cycle repairing shop. Ram Chandra Sinku came at his shop with Laru. Ram Chandra Sinku also showed him two packets of currency notes and told that by having such huge amount of money with him he feels pleasure talking with a girl. This witness was declared hostile. 11. P.W. 11 Khudra Tanti has stated in his evidence that he that he searched for Renso along with Bundu Sinku and Hemlal Sinku and they found Renso in the field of Ramchandra Sinku in a haphazard situation. Renso was not in his sense and he had stooled and vomit. He was carried to his house. Renso told that yesterday he had Ramchandra brought Rs. 30,000/-after withdrawing the same from the Bank and in the way Ramchandra showed him the fear of dacoit and took away his 30,000/-rupees. He also made him drink wine mixed with poison. ARGUMENTS OF THE APPELLANT 12. Learned counsel for the appellant Mrs. Leena Mukherjee, Amicus Curiae has argued that the appellant has been convicted on no evidence or scanty evidence because first and foremost there is no eye witness to the alleged theft, even P.W.1 who is the wife of the victim and informant of the case has not seen the exact theft taking place. Learned counsel for the appellant Mrs. Leena Mukherjee, Amicus Curiae has argued that the appellant has been convicted on no evidence or scanty evidence because first and foremost there is no eye witness to the alleged theft, even P.W.1 who is the wife of the victim and informant of the case has not seen the exact theft taking place. Learned counsel submitted that the allegations is essentially about money withdrawn from the bank and the said money being taken by the appellant and there is also allegation of poisoning at the instance of the accused but nobody is witness to all such allegation. Learned counsel has argued that initially the victim has stated that he went to bank with the accused but later on he says that the accused followed him which is inconsistency or contradiction in the evidence of the victim or P.W.2. Learned counsel for the appellant has also submitted that investigating officer of the case has not been examined and hence prejudice has been caused to the appellant as appellant did not get opportunity to cross-examine the prosecution witnesses and find out the contradiction. 13. Learned counsel for the appellant further submitted that it is alleged that the appellant had induced or compelled the victim to drink some poisonous substance with wine however, no body is a witness to such compelling and there has been no recovery of wine or any wine bottles. The learned court below has acquitted the appellant of the charge under section 328 of IPC i.e. administering poison to the victim and hence the charges under section 379 of IPC also cannot be sustained. But, the learned court below wrongly convicted and sentenced the appellant without any evidence under section 379 of IPC. 14. Learned counsel has also argued that there is no documentary evidence regarding the withdrawal of any money either through withdrawal slip or cheque. Moreover, no money purported to the extent of Rs. 30,000/-was also recovered. Learned counsel also submitted that it has not been revealed where the money was after it was withdrawn from the bank i.s. whether it was kept at home or whether it was with the victim and thereafter it was given to the accused or the appellant. Moreover, no money purported to the extent of Rs. 30,000/-was also recovered. Learned counsel also submitted that it has not been revealed where the money was after it was withdrawn from the bank i.s. whether it was kept at home or whether it was with the victim and thereafter it was given to the accused or the appellant. The theft would then have occurred from the home of the so called victim and then P.W.1 may have been in a position to have seen the theft, but this is not the case and therefore the allegations are fully false and concocted. 15. Lastly, learned counsel has submitted without admitting the guilt of the appellant that occurrence is more than 28 years old and appellant has faced the rigors and vigors of trial and appeal hence, Hon'ble Court may be pleased to consider the period already undergone by him as sentence sufficiently served or any other lenient sentence the Hon'ble Court may consider just. ARGUMENTS OF THE STATE 16. Learned counsel for the State, learned APP has , on the other hand, argued that this is a case in which the prosecution case as laid down by the informant Risa Kui P.W.-1 who is the wife of the victim has been fully corroborated by her. The victim P.W.-2 Renso Sinku has also proved the prosecution case. In this case, there are several other witnesses such as P.W.-4, PW-6 and PW-11 who have also supported the case. Moreover, the evidence of P.W.-7 though he has been declared hostile has disclosed that accused or appellant herein had shown two packets of currency notes to him. Learned Counsel for the State, therefore, says that based on the evidence of the aforesaid witness who are apparently genuine and truthful, the conviction of the appellant and the imposed sentence passed by the learned court below needs to be sustained and upheld. CONCLUSION 17. Having heard both counsels; having gone through the records of the case and the evidences, I find that the victim PW-2 Renso Sinku and appellant Ramchandra had gone out together to Noamundi Bank and withdrew Rs. 30,000/-from the bank. CONCLUSION 17. Having heard both counsels; having gone through the records of the case and the evidences, I find that the victim PW-2 Renso Sinku and appellant Ramchandra had gone out together to Noamundi Bank and withdrew Rs. 30,000/-from the bank. Ram Chandra after returning home had instilled fear in the mind of victim Renso and told him dacoits will loot his money and kill him and on this pretext he had taken away the victim for drinking and made him drink some poisonous substance due to which Renso became senseless and appellant Ramchandra took Rs.30,000/-of Renso. The victim Renso did not return in the night then on the next morning search was made and Renso was found in a field in unconscious condition and subsequent to which he was hospitalized. The fact that the victim PW-2 did not return in the night and was searched in the next morning and found lying in the field in an unconscious condition also finds support from the evidence of PW-11 who had gone in search of the victim and found him in unconscious condition in the field. 18. The prosecution case is further supported by the evidence of PW-4 who deposed that condition of Renso was bad and so he informed the matter to manki and then manki came to the house of Renso and gave his report to him and he delivered the aforesaid report in the police station. The prosecution case is further strengthened by the evidence of hostile witness PW-7 Soban Laguri who has deposed in his evidence that accused or appellant Ramchandra had come to his bicycle repairing shop and showed him two packets of currency notes and told him that with such money he feel pleasure talking with girl. Though PW-7 is a hostile witness but it is established that evidence of hostile witness can be taken into account to the extent it supports the prosecution case. Hence, prosecution has been able to prove that the said money was taken by the appellant from the possession of victim PW-2 with dishonest intention without the consent of the victim. 19. Therefore, prosecution has proved the charges under section 379 of IPC against the appellant and hence this court is led to uphold the conviction of the accused or the appellant dated 25-7-2003 passed by the learned 3rd Additional Sessions Judge, Chaibasa in S.T.No. 75 of 1992. 19. Therefore, prosecution has proved the charges under section 379 of IPC against the appellant and hence this court is led to uphold the conviction of the accused or the appellant dated 25-7-2003 passed by the learned 3rd Additional Sessions Judge, Chaibasa in S.T.No. 75 of 1992. However, bearing the mitigating circumstances in mind that occurrence is more than 28 years old and appellant has faced the rigors of trial for such a long time and has undergone about 10 months in custody out of the imposed sentence of one year so considering the mitigating circumstances, I modify the sentence to the period undergone already. The fine of Rs. 10,000/-as imposed by the learned court below is directed to be paid as compensation and hence the amount shall be paid to the victim PW-2 Renso Sinku or the victim's wife PW-1 Risa Kui as compensation, in default he shall undergo further imprisonment of six months simple imprisonment. 20. Lastly, this court is thankful to Ms. Leena Mukherjee for her assistance as Amicus Curiae. Secretary, JHALSA is directed to pay remuneration to Ms. Leena Mukherjee as per rules. 21. Accordingly, the appeal is dismissed with the above modification in sentence.