RAM SWAROOP RAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal has been preferred against the judgment and order dated 20.2.1989 passed by the then 2nd Additional Sessions Judge, Darbhanga in Sessions Trial No. 74 of 1983 whereby five accused appellants have been convicted under Section 395, INDIAN PENAL CODE, 1860 and sentenced to rigorous imprisonment for seven years. In total eight persons were put to trial for a charge under Sections 395/325 of the Indian Penal Code but only five accused appellants have been convicted under Section 395, INDIAN PENAL CODE, 1860 and it was held that charge under Section 325, INDIAN PENAL CODE, 1860 has not been proved from the side of the prosecution.

(2.) The story, in brief, is that P.W. 6 Ram Chandra Prasad Singh a resident of Samastipur District, had a Kamat in village Bhindua under P.S. Kusheshwar Asthan of this district. On 31.12.1978 in the morning hours at about 9 a.m. while he was at Darwaza of his Kamat house alongwith his Munshi Ram Narain Lal P.W. 3 then three persons passed them by saluting the Informant. Immediately thereafter 10 to 11 persons came from north side and surrounded the informant and they were armed with arrow and bow, pharsa and Lathi etc. The accused Appellant Ram Swaroop Rai had a pipe gun in his hand and on the threat by show of pipe gun the informant was not making any hullah and then other persons entered inside the room and took away Dari, Toshak, long Coat, some wearing apparels and the english D.B.B.L. gun belonging to the Informant. Out of the persons five accused appellants could be identified. It has further been stated in the fardbeyan lodged by P.W. 6 to the effect that soon after doing dacoity as his kamat, the accused persons had also attacked the field of P.W. 5 Bauan Rai and took away the bullocks from the field who were engaged in ploughing the field. This Bauan Rai had informed the taking away of bullocks by the accused persons to the Informant and in turn he had informed the Police. It is a peculiar case that when the First Information Report describes of two incidents being clubbed together but the Investigating Officer has stated that there was no information to him regarding taking away of bullocks of Bauan Rai which rather shows that he had not done any investigation regarding the second incident. About the assault on the servant Babaji Rai, P.W. 4 has been examined but he did not support the prosecution case and, as such, he has been declared hostile.

(3.) In the result the appeal is partly allowed by minimising the conviction from Section 395, INDIAN PENAL CODE, 1860 to that of Section 379, INDIAN PENAL CODE, 1860 and it could be found on the verification of the records that the accused appellants had remained in custody for about a year after their arrest before the lower Court. The occurrence is of 1978 and the appeal is being heard after more than two decades. Considering that aspect of the matter I feel that the sentence would be appropriate if the accused appellants are allowed to let off by imposition of punishment for the period they had already undergone which I do accordingly.