ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA)

Date : 03-05-2018

1. Both the above stated criminal appeals have been filed against Judgment of conviction and sentence order dated 27.03.1995 passed by learned Sessions Judge, Madhubani in Session Trial No. 241 of 1993, by which and whereunder, he convicted the appellants for the offence punishable under Section 396 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and, accordingly, a conman judgment is being passed in both the above stated criminal appeals.

2. A Dacoity was committed in the house of informant and others in the night of 02.10.1992 and in that course, the Dacoits committed murder of two persons. P.W.9, Shrichandra Jha, got recorded his Fradbeyan on 03.10.1992, at about 4 a.m. at Basopatti Hospital to this effect that, in the evening of 01.10.1992, he had gone to his village to attained the Barkhi of his aunt and in previous night at about 9.30 p.m., he along with his son Mukesh Kumar Jha, his uncle Bhuneshwar Jha, his cousin brother Jai Chandra Jha and two younger children were sleeping in his Baithka and at about 2 a.m., he woke up and saw two to three persons standing near his Chowki whereas two to three persons were standing near Chowki, on which, Jai Chandra Jha was sleeping. The aforesaid persons were flashing torch, the said persons had covered their faces by Galmoch. P.W.9 gave the physical description of the aforesaid persons. P.W.9 further stated that one of the persons, who was standing near Chowki, was carrying small weapon in his hand. He further claimed that one person removed his HMT watch from his wrist. In the meantime, he heard some sound, upon which, the person, who was standing near Chowki, asked him to sleep and, thereafter, the aforesaid persons proceeded towards his house. He noticed that there were 14 to 15 persons in number. He further stated that, in the meantime, Satish Chandra Jha came out of his house and when he reached at the end of corridor he uttered as to why they had assaulted his family members. In the meantime, P.W.9 heard sound of firing and some of the Dacoits entered in his house and some Dacoits entered in the house of his cousin brother namely, Sukh Chandra Jha. The above stated Satish Chandra Jha came towards Baithka and fell down crying on the Chowki. The Dacoits committed loot in both the houses and decamped with looted articles. P.W.9 after decamping of the Dacoits went near the Chowki of Jai Chandra Jha and noticed that Jai Chandra Jha having sustained firearm injury on his eye had died and he also noticed that Satish Chandra Jha had sustained fired arm injury on his neck and the blood was oozing out, Satish Chandra Jha was alive. The informant and others took him to Basopatti Hospital, where Doctor declared him brought dead. The informant claimed that he could identify Dacoits and looted articles.

3. On the basis of aforesaid Fradbeyan, Basopatti P.S. Case No. 139 of 1992 for the offence under Section 396 of the Indian Penal Code was registered and on the same day, former FIR for the above stated offence was drawn up against unknown Dacoits.

4. P.W.13, namely, Mirja Shefula Baig, the then Officer-in- charge of Basopatti Police Station, took the charge of investigation. He inspected the place of occurrence, seized the empty cartridges from the place of occurrence and seized blood stained clothes etc., prepared the seizure list and recorded the statement of witnesses and also got recorded the statements of P.W. 1 and P.W. 2 under Section 164 of the Cr.P.C. and after completion of the investigation, he submitted charge sheet against the appellants and others for the offence punishable under Section 396 of the Indian Penal Code.

5. It is pertinent to note that the appellants were arrested in course of investigation as suspect and they were put on Test Identification Parade. P.W. 5, P.W.6, P.W.8, P.W.9 and P.W.10 participated in the Test Identification Parade and claimed to have