The court has the discretion to modify the sentence based on the period of trial and appeal, considering the absence of previous criminal antecedents of the appellants.

Mandhata Singh, J.-Prosecution case initiated on fardbeyan of one Harinandan Thakur in brief is that in between the night of 2/3.7.1984 he was sleeping in veranda of his house, other family members including his grand son and Bhagina were also sleeping, sensing sound of tiles of his chappar and jumping of some persons in his angan he woke up and saw the main door of female portion of the house opened. He entered the house and saw 5-6 dacoits armed with lathi, fasuli and gun surrounding Doman Thakur and 4-5 dacoits taking away Pettis containing clothes, ornaments and other articles. It is further alleged that dacoits took away some utensils also. When an attempt was made to apprehend dacoits by the informant, his grand-son and Bhagin, they were assaulted by means of lathi. They were caused injury by means of fasuli also on shoulder, thigh and leg. The dacoits were talking in Magahi language. Some of them were wearing kurta dhoti, some baniyan and lungi and some half pant. They were of different complexion. Some of dacoits had covered their faces. Villagers also gathered on alarm.

2. Both the appellants along with Rambali Mahto faced trial which ended in their (appellants) conviction and sentence for the offence under Section 395 of the Indian Penal Code and in course of investigation there appeared some recovery of looted utensils from the house of accused Kapildeo Mahto for which he is convicted and sentenced for the offence under Section 412 of the Indian Penal Code also. Both the appellants were awarded ten years rigorous imprisonment for the offence under Section 395 of the Indian Penal Code with a fine of Rs. 5,000/- each. Both the sentences were directed to run concurrently. Further ten years rigorous imprisonment is awarded for the offence under Section 412 of the Indian Penal Code with a fine of Rs. 5,000/-. In default of fine there is further sentence of one year.

3. Conviction is basing evidence of P.Ws 1 to 4, they are P.W 1 Sita Ram Thakur, PW 2 Doman Thakur, PW 3 Guru Thakur and PW 4 Talkeshwar Thakur. Conviction of the appellants is not challenged. So, detailed discussion of the evidence of witnesses is not needed in the case. Liberty is sought on the point of sentence only that both the appellants faced trial for a period of near about 25 years, their appeal is also pending for about four years. There is no previous criminal antecedent of appellants. Taking the same into consideration, I am also of the view that some liberty should be given to appellants on the point of sentence which may be minimized to the period already undergone.

4. In the result, the appeal is dismissed. The judgment of conviction dated 29.3.2008 passed in Sessions Trial No. 304/92/155/04 is maintained, with modification in sentence to the extent that the sentence which was awarded to appellants by order dated 16.4.2008 is modified and minimized to the period already undergone by them. They are exonerated from the liability of fine imposed by the trial Court also.

5. Appellant No. 1 Kapildeo Mahto is on bail. He is discharged from the liability of his bail bond. Appellant No.2 Faujdar Sao is in custody. He is directed to be released forthwith, if not wanted in any other case.

6. A copy of this judgment along with the lower Court records be sent back to the trial Court forthwith. Appeal dismissed.