MANOJ SAHNI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE sole appellant Manoj Sahni, was convicted by the trial Court in its judgment dated 15.7.1991 rendered in Session Trial No. 148/89 under Sections 395 and 412 IPC and he was sentenced to undergo RI for ten years on both the counts. THE sentences were directed to run concurrently.

(2.) THE prosecution case was based on the fardbayan of one Nirmala Shrivastava wherein she alleged that on 29.4.1987 at about 10 p.m., she was inside her house alongwith her children. THE exit door of her house was open. Suddenly, five persons entered insider her house with bombs and country made pistol. Two of the culprits were standing outside the house and keeping watch. One of the culprits who had entered into her house asked for jewellary and other valuables in the house at the point of fire arms. THE informant handed over the key to the docoit and then the docoit searched the articles inside the box and found nothing insided the box except papers. One the docoits relieved the informant's son Manish of his electronic writs watch. Another son of the informant was also relieved of his wrist watch. Subsequently, one of the dacoits exploded bomb inside the room causing injury upon herself and her sons. One of the dacoits fired from his pistol which caused some injury upon the informant. No other article was looted from the house of the informant. Fardbayan was recorded at Sadar Hospital, Muzaffarpur on 29.4.1987 at 10.30 p.m. THE trial Court, on the basis of seven witnesses and some papers and documents exhibited in the Court, held the accused-appellant guilty as stated above. THE trial Court held on the basis of the evidence of PWs. 1, 2 and 4 coupled with the objective evidence of PW 6, Part IO of the case, that the factum of the dacoity inside the house of the informant was well established. PWs 1, 2 and 4 who were mother and sons made positive statements regarding dacotiy in their house and PW 6 found the objective materials which confirmed the factum of the dacoity. He had prepared seizure list for splinters of bomb found at the place of occurrence and he also found pieces of flesh which fell after being pealed off from the persons of the victims as also of one of the dacoits Kanchan Sahni, who was also convicted alongwith the appellant.

(3.) THERE was another legal faux-pas committed by the trial Court in its impugned judgment. The trial Court in its categorical statement in para 8 said that the appellant was not identified in TI Parade. So there was no evidence against the appellant for having participated in the alleged offence of dacoity inside the house of the informant. In such circumstances, the appellant could not legitimately be convicted under Section 395 IPC. Moreover, recovery of any incriminating article may be a piece of evidence to connect the accused with the main offence of dacoity but the same accused cannot be convicted for both the offence of dacoity and recovery of any incriminating article. The same accused can at best be convicted either under Section 395 or Section 412 IPC. The trial Court admittedly committed an error in holding the appellant guilty both under Sections 395 and 412 IPC. The above infirmity apart, I have already stated above that the evidence regarding recovery of incriminating article also from the house of the appellant was insufficient and not so positive as to hold him guilty under Section 412 IPC.