JUDGMENT
P.K. Deb, J.
1. This appeal has been preferred by the above-mentioned convict-appellants against the Judgment of conviction and sentence passed by the then Addl. Sessions Judge, Gaya, in Sessions Trial No. 303 of 1985 (17 of 1986) on 27-2-1989, whereby and whereunder the three accused-appellants along with three others have been convicted under Section 412 of the Indian Penal Code and sentenced to rigorous imprisonment for six years.
2. A dacoity was committed at the house of informant Balkesh Sao in the night hours on 25-8-1984 and thus dacoits had taken away the valuables including the clothes, utensils and ornaments. Information was lodged on the next date by the informant Balkesh Sao. During the course of investigation on a secret information, the Investigating Officer conducted a raid in the huts and house of the accused-appellants along with others and several booties of the dacoity were alleged to be recovered. Those booties include dhoti, sarees, readymade garments, utensils and silver-made ornaments. A test identification parade was conducted by the B.D.O. On a belated date i.e. on 6-12-1984 and the informant and his wife had rightly identified some of the articles which were seized from the huts and house probably of the accused-appellants and also of the other accused who have been tried along with the accused-appellants.
3. The police after investigation submitted charge-sheet under Sections 395/412 of the Indian Penal Code against the accused-appellants along with other four accused. Defence has fully denied of the prosecution case. On being committed to the Court of Session, charges were framed against all the accused-persons including the accused-appellants under Sections 395/412 of the Indian Penal Code. In total, seven witnesses have been examined in the case by the prosecution side including P.W. 7, the I.O. During the course of trial informant and his wife and other inmates who were examined as prosecution witnesses have simply denied to identify all the accused-persons. They have not identified any of the accused-persons during the course of investigation also. Hence the Court below in the impugned Judgment held that the prosecution could not be able to prove the charge under Section 395 of the Indian Penal Code. But, regarding charge under Section 412 of the Indian Penal Code, it was held by the Court below that the same has been proved against the accused-persons including the accused-appellants.
4. Various points have been raised regarding the search and seizure and also regarding the identification of so-called booties of the dacoity and thus arguments which have been placed before this Court were also placed before the Sessions Judge. Learned Sessions Judge turned down those arguments. The independent witnesses who were present at the time of search and seizure have not been examined in the case. But that search and seizure had never been challenged from the side of the accused-persons. Their simple plea and suggestion given to the witnesses was that P.W. Nos. 2 and 3 that is informant and his wife had wrongly identified the articles. The articles which were identified and taken into custody by P.W. Nos. 2 and 3 had been produced during the course of trial before the Court and the Court below those have been identified as was identified before the B.D.O. while holding T.I. parade. No where before the trial Court or before this Court, the accused-persons have never claimed ownership over the articles. The Investigating Officer has deposed as to how those articles were were being concealed in the house and such concealment shows the intention and motive of the accused-persons. If those articles were not of the booties of the dacoity or stolen articles these could not have been concealed under the cow-dung or under the earth. Thus, I find that the conviction arrived at by the Court below under Section 412 of the Indian Penal Code against the accused-appellants cannot be questioned, and such charge has been proved beyond all reasonable doubt against the present accused-appellants also. But considering the fact that the accused-persons could not be proved of the charge under Section 395, I.P.C. and that they had faught a long battle of the criminal case which continued for more than one and half decade and the accused-persons are the sufferers for hanging of a criminal case over their heads. Sentence imposed on them is too harsh for the charges proved against them. The articles of dacoity and already been recovered and had been given in possession of the informant party long back.
5. On perusal of the records of the Court below, it could be found that the accused-appellants remained in custody for about 5 to 6 months. Considering the gravity of offence and the circumstances as stated above, it is felt that justice would be done if the accused-appellants are let off on imposing of sentence for the period which they have already undergone which I do accordingly. Thus, the Criminal appeal is rejected with modification in the sentence as mentioned above. The accused-appellants may be relieved of their bail-bonds as the period undergone have been imposed on them for offence.