KODO MIAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE appellants, namely, Kodo Mian and Sakal Hembram @ Sakla Hembram have been found guilty under Section 395 of the Indian Penal Code and have been sentenced to undergo RI for ten years by the learned Additional Sessions Judge, Godda in Sessions Case No. 34 of 1994/16 of 1994 vide judgment dated 30th September, 1994.

(2.) THE prosecution case as per fardbayan (Ext. 1) of Ranjit Kumar Mehra (PW 1) is that on 25.2.1987, informant, Ranjit Kumar Mehra along with his servant Mijaj Kumar Mehra was taking sleep in his Rice Mill located in his dwelling house. At about 11.30 p.m. he felt quilt over him have been denuded. Thereupon he awoke from sleep and found a man holding pistol in his hand standing near his head at the right of his cot. He identified that man in the light of burning lantern kept in the room. The said miscreant was Kodo Mian. On the point of revolver accused Kodo Mian ordered him to keep mum and the other culprits unfastened the outer door of the Mill to facilitate access of 9 -10 associates to the Mill. He identified amongst the culprits accused Kodo Mian and Sakal Hembram besides one Khairu Mian who were holding lathi and farsa in their respective hands. Accused Kodo Mian asked about the owner of the Mill and Tijori and when the informant replied that the key of the Tijori was with the master who was out of the house. Thereupon accused Kodo Mian gave two fist blows on his chest. Two culprits remained stayed near the informant while the other entered the residential portion of the house and made loot therein. When their loot was over, outlaws collected the informant and his mother, brother, sister, aunt and brother 'swife in a room and closed them therein by fastening the chain from outside of the door. Thereafter outlaws fled away with the looted articles. Them members of the informant 's family made hue and cry that attracted informant 'scousin Lallan Kumar Mehra who unfastened the chain and opened the door.

(3.) MR . Manoj Kumar Sah, learned counsel for the appellants has submitted that the prosecution has totally failed appellants but even then the learned Additional Sessions Judge has wrongly convicted them under the aforesaid sections. He has also submitted that only PW 1 has come forwarded to establish the charges. But from perusal of the FIR it would appear that several witnesses, who were said to have been present at the time of the alleged occurrence i.e. servant of the informant, who was sleeping with him, his mother, his elder brother, his elder sister, his bhabhi and his younger brother. All these persons have been named in the FIR and they were also mentioned as charge -sheeted witnesses but none of them had been examined by the prosecution and therefore, adverse inference should be drawn against the prosecution for holding the material witnesses so as to corroborate the testimony of the informant/