MAHESH CHOUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal has been preferred against the judgment and order of conviction dated 28.8.1939 passed by the 2nd Assistant Sessions Judge, Gopalganj in Sessions Trial No. 11/89 convicting appellant No. 1 Mahesh Choudhary under Sections 395 and 412, IPC and sentenced him to undergo RI for seven years and five years respectively. The sentences were to run concurrently, appellant No. 2 Jiut Choudhary has been convicted under Section 395, IPC and sentenced to undergo RI for seven years.

(2.) The brief fact of the case is that the informant Nagina Choudhary (PW 1) lodged fardbeyan against unknown alleging therein that in the night intervening between 13/14th of March, 1988 while he was sleeping on a cot in his house about 15 to 20 dacoits entered the house. They started looting valuables and on protest by the informant and family members, the dacoits assaulted the informant, his brother Sita Ram Pathak (PW 5) and his wife Sukhiya Devi (PW 4). They snatched ornaments from the possession of female members. The informant and some of the family members claimed to have identified some of the dacoits, who had not covered their faces. The informant stated that the properties worth Rs. 4,000/- were looted by the dacoits. The dacoits had also fired, guns causing injuries to some persons. After some time of the dacoity, the police party arrived at the place of occurrence which was on patrolling duty and having heard the sound of fire it reached the house of the informant. The fardbeyan of the informant (Ext. 2) was recorded and on its basis formal FIR (Ext. 3) was drawn up. The main investigation of the case was conducted by Sub-Inspector Awadhesh Singh (PW 9), who had recorded the fardbeyan and the statement of most of the witnesses, but in the meantime, he was transferred. PW 4 Prithwi Nath Tiwary. Sub-Inspector of Police completed the investigation and submitted charge-sheet.

(3.) During the course of investigation of the case, some of the suspected looted articles such as silver and golden ornaments and clothes were recovered from the house of appellant Mahesh Choudhary on 15.3.1988. These articles were put on T.I.P. which was conducted by Circle Officer Sahdeo Ram (PW 7) and identified by female members of the informant's family including Jiuti Devi (PW 3) who is daughter of the informant, Sukhia Devi (PW 4) wife of the informant and Panmati Devi (PW 2) wife of younger brother of the informant. The accused Mahesh Choudhary and Jiut Choudhary were arrested on 18.3.1988 and they were put on T.I.P. and they were identified by as many as four witnesses. During the course of investigation another accused, namely, Deomuni Yadav was also arrested but no suspected article was recovered from his possession. He was also put on T.I.P. which was conducted by Raj Kishore Choubey, Judicial Magistrate (PW 6) and he was identified by the informant and his brother Sita Ram Pathak (PW 5). However, the trial Court did not find sufficient evidence against him and accordingly he was acquitted.