S.K. Sharma, J.@mdashBoth the appeals are arising out of one judgment as such they have been heard together and are being disposed of by this common judgment. All the appellants have filed these appeals against the judgment of conviction and order of sentence dated 19.12.1992 passed by the 9th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 75 of 1981 whereby the appellants were found guilty for committing the offence u/s 395 of the Indian Penal Code and were sentenced to undergo R.1. for five years.
2. Exhibit-3 is the basis of the prosecution case which is the fardbeyan of informant PW-5 relating to Bikramganj P.S. Case No. 23(4) of 1976 which was registered against 24 accused persons. Allegation was that in the night of 26/27th April, 1976, PW-9 was irrigating his orchard which was situated just besides the house, the informant noticed flash of torches and cried and when the informant went near the dacoits then the dacoits fired. The informant thereafter, went to village Panwara and brought the gun man. Some of the dacoits went on the roof of the informant''s house and entered inside the Angan through the roof and some remained at the roof. Other dacoits were standing outside the house. Total number of dacoits was alleged to be sixty. They committed plundering there for about 2 and 1/2 hours. On cry Ram Snehi Yadav and Rajdeo Yadav arrived but they were fired upon and injured by the dacoits. The villagers arrived and saw the occurrence. In the meanwhile Lallan Singh, Bishwanath Singh, Kishore Singh, Bhagwan Singh, Bachan Singh, Baban Singh etc. of village Panwara arrived with firearms and they opened fire which caused injury to some of the dacoits. The dacoits escaped after plundering the house, looted away number of articles details of which were given in the FIR itself. At the time of escaping the dacoits also took away licensed gun bearing no. 11895 with 20 cartridges. The informant identified Lallu Kanu, Bikrama Nonia and 23 others whose name has been mentioned in the FIR itself. The informant''s wife, daughter and daughter-in-law also identified one of the dacoits Awadhesh Mauar who was killed by the firing of the villagers. The statement of the informant was investigated into and after investigation final form was submitted. A protest petition was filed by the informant and thereafter summons were issued. The case was committed to the Court of Sessions where charges were explained to the accused persons. They denied their implication and claimed to be tried.
3. In order to prove the case the prosecution examined altogether 15 witnesses. They are PW-1 Kailash Pal, PW8 Rangnath Singh, PW-13 Sheoshankar Singh, PW-14 Ramjee Singh. These witnesses are formal witnesses and they have proved Ext.-1 (FIR), Ext.-2 (Protest Petition), Signature of Officer In-charge of Bikramganj Police Station (Ext.-5), Service report of the summons (Ext.-7), Signature of Sheokumar Mishra, Bishwanath Singh and Ramesh Kumar Rai (Ext.-7/1 to 7/3), Endorsement of Officer In-charge, Sahpur Police Station (Ext-7/4). PW-4 Ram Pravesh Yadav, PW-5 Ramdular Singh, PW-6 Hiralal Singh are the other witnesses of the prosecution.
4. PW-15 has proved some paragraphs of the case diary. The informant has been examined as PW-9. The informant''s wife Kaporva Devi has been examined as PW-10. Informant''s daughter has been examined as PW-11, another daughter of the informant has been examined as PW-7.
5. The case of the appellants was that many of the alleged dacoits were the co-villagers of the informant and informant with evil eye implicated the accused persons.
6. PW-9 in his evidence has described the manner of occurrence. According to him when the dacoits came, they were flashing torchlight and in the torchlight the informant identified the dacoits whose name has been given by the informant in his deposition. He has stated that the dacoits were firing as a result of which Ramsnehi Yadav and Rajendra Yadav were injured. When the nearby villagers came with firearms and retaliated then only the dacoits escaped. Before escaping they looted a number of articles belonging to the informant. The informant has named and identified all of them. The statement of the informant has been supported by his wife PW 10, and some other witnesses who were present at the time of occurrence in the house. PW-10 is the natural witness of the occurrence as she is the wife of the informant and her presence in the house at the time of occurrence can be easily perceived as wife remains in the house specially in the night which is the time of occurrence. Besides the wife the factum of dacoity has been supported by PW-12 Kusum Devi, Lalmuni Devi PW-11 and other inmates of the house. PW-11 is the daughter of the informant, she has given similar evidence as that of the informant as well as of her mother. Kusum Devi PW-12 is the another daughter of the informant who was present at the time of occurrence in her house. According to her she was sleeping on the roof and woke up in the mid-night due to hearing of breaking sound of doors and cried upon. She saw the occurrence in entirety. According to her the dacoits took her, her mother and sister in the room and opened the gate of the house and thereafter they took away a number of articles which had been described by her.
7. On the point of occurrence besides these witnesses other witnesses have also supported the factum of dacoity as well as role of the appellants.
8. A number of witnesses have been examined on behalf of the prosecution as eye witness and they have supported the prosecution case on the manner, time and place of occurrence. Not only that they have also described the articles which were taken away by the dacoits.
9. Learned counsel for the appellants submitted that the witnesses examined on behalf of the prosecution are interested witnesses and alleged injured witnesses have not been examined. They should have been examined. Their non-examination has cast grave shadow of doubt on the prosecution version. Further argument is that the father of the appellant Rajendra Nonia @ Rajendra Chaudhary and Birendra Chaudhary and Birendra Nonia were the witnesses against the informant in a case under Sections 144 and 145 of the Cr.P.C. and Deoki Chaudhary had also deposed against the informant in Title Suit No. 386/122 of 1963/1966 pending before the Court of the Additional Munsif II, Sasaram. Those were the strong reasons for false implication of the appellants. Some other independent witnesses have given true version that they have not seen the occurrence. But the trial court has not relied upon the evidence. Even PWs. 4 and 6 who have stated that they have not seen the occurrence but the trial court has not relied upon their evidences. It has also been submitted that the only source of identification was the torchlight but that torch was neither produced before the I.O. nor before the trial court. So according to the learned counsel for the appellant the case suffers on account of non-examination of independent witnesses, reliance upon the interested witnesses, with holding of independent witnesses who were allegedly injured in course of alleged occurrence and non-production of the source of identification i.e. torch.
10. I have considered the submissions of both sides. In this case the informant PW-9 in his evidence has supported the factum of dacoity and he has narrated the entire occurrence. He has been cross-examined at length on every aspect of the matter and his evidence remains intact and defence could not succeeded in taking out any fact which can be said that he was interested witness. On the point of occurrence the informant has been supported by the inmates of the house and who are the eye witness and have supported the factum of dacoity that on the date and time of occurrence a dacoity was committed in the house of the informant in which a number of articles were taken away and role of the appellants have been surfaced during the dacoity.
11. I am of the view that the prosecution has been able to prove its charge beyond all reasonable doubt against the appellants. But it has been submitted by the learned counsel for the appellants that the occurrence is of the year 1976 i.e. 32 years earlier and many of the accused had died even at the time of passing the impugned judgment one of the appellants was aged about 70 years and two others were of 60 years at the time of judgment by the trial court. It has been submitted that the appellants are of advanced age and they are not even in a position to move independently. They are dependent upon others due to their advanced age and no useful purpose will be served in sending them jail again after 32 years of the occurrence for serving remaining sentences.
12. I see force in the argument of the learned counsel for the appellants and I am of the view that no useful purpose will be served in sending them in jail again for serving remaining sentences. On perusal of the record it appears that the appellants have remained in custody for various periods of time even at the time of passing the judgment of conviction they were taken into custody and were released on bail by this Court, therefore, they have remained in custody for longer time. Accordingly, the sentences of the appellants is modified to the extent that the period undergone by them in custody during investigation, trial and appeal shall be deemed to be sufficient for the ends of justice. In the result these appeals are dismissed with the modification in the sentence.
