JUDGMENT
P.K. Deb, J.
1. This appeal has been preferred against the judgment and order dated 8.2.1989 passed by the then 2nd Additional Sessions Judge, Saharsa, in Sessions Trial No. 7 of 1984 whereby and where under the four accused-appellants have been convicted under Section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years.
2. The occurrence took place in the night between 13th and 14th September, 1982 at the house of Sitaram Mandal. This is a case of the prosecution that when the inmates of the house including the informant were sleeping then the accused-appellants along with others had entered inside the house by breaking the doors and committed dacoity. Hullah was raised and then the neighbouring people came and the dacoits attempted to flee away. All other accused could be able to escape except the accused-appellant No. 1, Namely, Kailu Mandal, who was caught red-handed with a country made gun along with live cartridge in his possession. He made extra judicial confession before the persons, who caught him red-handed naming other dacoits. He was also produced before the Judicial Magistrate for recording of his confessional statement under Section 164, Cr.P.C. P.W. 7, Binay Kumar Sinha, Judicial Magistrate, had recorded the statement of Kailu Mandal.
3. The first information report was lodged on 14.9.1982, i.e., on the next date by Sitaram Mandal and during the course of investigation booties of the dacoity were alleged to be recovered from the possession of accused-appellant No. 2, namely, Harihar Mandal. Those booties which are the common articles such as old utensils, old clothes, etc., were put on test identification parade and it is alleged that those were identified by the informant. After closure of investigation charge-sheet was submitted under Section 395/412 of the Indian Penal Code. On being committed to the Sessions charges were framed against the accused-appellants along with two others under Section 395 of the Indian Penal Code. While against Harihar Mandal there was further charge under Section 412 of the Indian Penal Code.
4. The defence case is of denial of the prosecution story.
5. It is an admitted fact that both parties come from the same village and each party know each other from earlier.
6. For and on behalf of the prosecution in total 13 witnesses have been examined. Out of whom P.Ws. 12 & 13 are only formal witnesses. P.W. 1 Rameshwar Mandal identified accused-appellant Nos. 1 to 3. P.W. 2 Mosmat Devki wife of P.W. 6 identified accused-appellants No. 2 & 3. P.W. 3 Bachcha Lal Mandal only identified accused-appellant No. 2. P.W. 4 Mahendra Mandal also identified accused-appellant No. 2. P.W. 5 Baleshwar Mandal has been tendered. P.W. 6 Sitaram Mandal identified accused-appellant No. 1 along with another who has not been convicted. P.W. 7 Binay Kumar Singh is the Judicial Magistrate, who recorded the confessional statement of accused-appellant No. 1. P.W. 8 Dayanand Jha is the Block Development Officer, who held test identification parade regarding the alleged booties of the dacoity. P.W. 11 Sudhir Kumar Verma is the seizure witness although he did not support regarding the seizure from the possession of Harihar Mandal. P.W. 10 Prabhudayal Singh is the Investigating Officer.
7. After scrutinising the evidence on record learned Court below held that the charge under Section 395 of the Indian Penal Code has been proved beyond all reasonable doubts against the present accused-appellants and, as such, convicted them under Section 395 of the Indian Penal Code and sentenced them to rigorous imprisonment for ten years. In respect of the charge under Section 412 of the Indian Penal Code it was held by the learned Sessions Judge that the same could not be proved beyond all reasonable doubt against accused-appellant No. 2 and, as such, he was acquitted of that charge. Accused-appellant No. 1 was caught red-handed while being chased on commission of the dacoity and he made extra-judicial confession before the witnesses and also made a judicial confession before the Magistrate.
8. The sanctity of the judicial confession has been proved by P.W. 7. On cross-examination it could not be dislodged that the confession was a voluntary and by free-will without having been influenced or threat by the investigating agency. When other accused-appellants have been tried conjointly with the accused-appellant No. 1 then the judicial confession made by accused-appellant No. 1 can also be used against other accused-appellants when accused-appellant No. 1 has named the other accused appellants also as his co-dacoits. Besides this there is overwhelming evidence of identification by the inmates of the house of the accused-appellants except the fact that accused-appellant No. 4 could only be identified by a single witness. On independent scrutiny of the evidence on record I also agree with the findings of the learned Sessions Judge regarding the conviction under Section 395 of the Indian Penal Code against all the accused-appellants and, as such, this appeal has got no force regarding the conviction under Section 395 of the Indian Penal Code.
9. It appears that occurrence took place long back in the year 1982 and about two decades have passed till the criminal prosecution has been pending against the accused-appellants. Besides accused-appellant No. 4, other accused-appellants have remained in custody for about seven years. Accused-appellant No. 4 remained in custody for about two years some months.
10. Considering the fact that there was allegation of taking away or looting away of common articles when those common articles are available in almost of the houses and on that plea the charge under Section 412 of the Indian Penal Code has not been established, as observed by the learned Sessions Judge, I feel that the accused-appellants have already been sufficiently punished for the offence committed by them and it would not be proper after long 17 years to send them again to the jail for serving the balance of the sentence. In that view of the matter, although the conviction is upheld their sentence is minimised to the extent period undergone.
11. In the result, the appeal is dismissed with the modification in the sentence, as mentioned above. The accused-appellants may be relieved of their bail-bonds.