IMPORTANT POINT
The court's decision was influenced by the application of judicial mind, the sufficiency of evidence provided by prosecution witnesses, and the consideration of mitigating circumstances in modifying the sentence.

JUDGMENT :

DEEPAK ROSHAN, J.

1. Heard learned counsel for the parties.

2. This criminal appeal is directed against the judgment of conviction dated 24.05.2004 and order of sentence dated 25.05.2004, passed by the learned Addl. Sessions Judge, Fast Track Court-III, Gumla in Sessions Trial No. 196 of 2003, whereby the appellant has been convicted under Section 395 I.P.C. and sentenced to undergo rigorous imprisonment for seven years with a fine of Rs. 100/- and in default of payment of fine he was directed to further undergo S.I. for six months.

3. The prosecution case, as per Fardbayan dated 09.2.2003, in brief is that on 08.02.2003, at about 7.30 p.m., while he was going to his Bari to urinate, then he was caught hold of by criminals who claimed themselves to be of M.C.C. party and demanded guns and Rs. 5 lacs and when the informant told them that he was unable to pay the same, they searched his house pointing revolver at the wife and son of the informant and looted Rs. 500/- cash, Tital wrist watch and Philips Radio. After dacoity, when the criminals were trying to flee, one of them, i.e. this appellant was apprehended by the villagers.

4. Learned counsel for the appellant made following submissions assailing the impugned judgment:

(i) The impugned judgment and order of conviction and sentence is bad in law as well as on fact and the same is liable to be set aside as the learned trial court has recorded the conviction and sentence without application of judicial mind and same is liable to be set aside.

(ii) PW-5 is the informant and PW-2 is the son of the informant and both of them have not disclosed the name of the accused out of seven dacoits and no prosecution witness has identified the accused as a person who was involved in committing the dacoity and all the witnesses have supported that no incriminating articles and no looted article was recovered from the possession of the accused.

(iii) The learned court has failed to consider the defence of the appellant that when he was going to his relation to other village with one torch in the dark night just after the occurrence the appellant has been caught by the villagers about 50 yards away from the house of the informant.

(iv) The appellant has not been properly examined under Section 313 Cr.P.C.

Learned counsel, after the aforesaid argument made an alternative prayer on the question of sentence and submits that the incident is of the year 2003 and the appellant has suffered the mental agony due to ongoing litigation and looking to the overall facts and circumstances of the case, this court may kindly, at least, modify the sentence for the period already undergone as appellant is a middle aged person and he remained in custody for about 1383 days and never misused the privilege of bail and further the appellant is having no criminal antecedent.

5. Learned A.P.P. opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellant. However, he fairly submits that as per record, there is no criminal antecedent of the appellant; as such, if the sentence is modified, then the same should be modified in lieu of fine.

6. Having heard learned counsel for the parties and after going through the impugned judgment and the documents available on LCR, and looking to the comprehensive facts and circumstances of the case and the deposition of the prosecution witnesses who have considerably proved the case of the prosecution and the findings of the trial court; this Court is not inclined to interfere with the judgment of conviction and thus the same is sustained.

7. Now coming to the alternative argument of the learned counsel for the appellant with respect to sentence awarded to him; this Court is of the view that at this stage remitting the appellant to the rigors of imprisonment at this juncture of his life would not serve the ends of justice since no motive or element of planning has been proved in the instant case and admittedly the app