Md. Nadim and Others vs The State

Md. Rahul @ Golam Mustafa, Abdul Hamid, Md. Nadim, Md. Nausad, Promod Kumar Mahato and Prabhunath Sah @ Nath were tried by the Court of Additional Sessions Judge, First Court, Alipore, South 24-Parganas for offence under Sections 395 /397 of the Indian Penal Code and u/s 25(1B)(a) of the Arms Act. The Court of Additional Sessions Judge, First Court, Alipore, South 24-Parganas vide the impugned judgment dated 22nd June, 2011 held appellants guilty of offence under Sections 395 /397 of the Indian Penal Code and also found appellants, Prabhunath Sah @ Nath and Promod Kumar Mahato guilty for offence u/s 25(1B)(a) of the Arms Act. Vide a separate order dated 23rd June, 2011, the appellants were sentenced as under:

All the Accused persons are sentenced to suffer R.I. for nine years each and to pay fine of Rs. 5000/- each i.d. to suffer R.I. for 4 (four) months each for the offence u/s 395 of the I.P.C. All the accused persons are sentenced to suffer R.I. for 8 (eight) years each and to pay fine of Rs. 4000/- each i.e. to suffer R.I. for 2 (two) months each for the offence u/s 397 of I.P.C.

Accused persons namely, Promod Kumar Mahato & Prabhunath Sah @ Nath are sentenced to suffer R.I. for two years each and to pay fine of Rs. 1000/- each i.e. to suffer R.I. for one month each for the offence u/s 25(1B)(a) of the Arms Act.

Only three appellants, namely, Abdul Hamid, Prabhunath Sah @ Nath and Md. Nadim have filed three appeals being CRA No. 383 of 2011, CRA No. 390 of 2011 and CRA No. 412 of 2011 respectively. Remaining three appellants, namely, Md. Rahul @ Golam Mustafa, Md. Nausad and Promod Kumar Mahato have not filed any appeal.

Shri Saswata Gopal Mukherji, Counsel assisted by Shri Sanjoy Banerjee, Counsel for State on verbal instruction from Deb Narayan Mandi, Welfare Officer of the Presidency Correctional Home has stated that the three appellants who have not filed any appeal, are going to complete their sentence on 18th January, 2013 in case fine is deposited by them.

Briefly stated, a report was lodged by Dilip Biswas, PW 2, that on 17th April, 2004 at about 11-45 A.M., he along with sub-staff, Jayanta Das, started from his office by a rickshaw to Allahabad Bank, Beliaghata Branch for depositing cash of Rs. 3,57,529.10P. and cheque amounting to Rs. 12,09,009.40P. The amount was being carried in a VIP attach� case. At that time, a motorcyclist came in front of the rickshaw and started quarreling with the rickshaw-puller. At that time, other two boys came with motor cycle, took out a revolver and decamped with the cash.

Dilip Biswas lodged a complaint with the Beliaghata Police Station narrating the above-said facts and on the basis of that, Beliaghata Police Station Case No. 76 dated 17th April, 2004 was started. The above-said FIR was investigated. A report u/s 173 of the Code of Criminal Procedure was submitted. Case was committed for trial to the court of sessions and was entrusted to the Court of Additional Sessions Judge, First Court, Alipore, South 24-Parganas.

All the six accused were charged for offence under Sections 395 /397 of the Indian Penal Code to which they pleaded not guilty and claimed to be tried. Appellants, Prabhunath Sah @ Nath and Promod Kumar Mahato were also charged for offence u/s 25(1B)(a) of the Arms Act. They also pleaded not guilty and claimed trial.

Prosecution commenced its evidence and examined as many as twenty-five witnesses. Thereafter, statements of the accused were recorded u/s 313 of the Code of Criminal Procedure. They have examined no witness in defence.

Shri Antarikhya Basu, Counsel appearing for Abdul Hamid, Shri Arunabha Maitra, Counsel appearing for Prabhunath Sah @ Nath and Md. Musharrof Hossain, Counsel appearing for Md. Nadim have jointly stated that they have gone through the evidence of the witnesses. They are not in a position to assail the conviction of the appellants. They have jointly submitted that they accept the finding of conviction recorded by the Court below. However, they have submitted that they will only pray to this Court that considering the sufferance of protracted trial by the appellants, sentence awarded upon them by the trial Court be reduced.

Counsel for Abdul Hamid has stated that he has already undergone eight years nine months out of the total sentence of nine years awarded by the trial Court. Similarly, Counsel for Prabhunath Sah @ Nath submits that he has undergone eight years seven months twenty-seven days whereas Counsel for Md. Nadim submits that he has undergone eight years and four months.

We cannot appreciate the fact that out of nine years of sentence awarded by the Court below, appellants have already undergone sentence of more than eight years.

Considering the fact that non-decision of the appeal has eluded the appellants, we are of the view that indeed they have suffered a protracted trial. Thus, in view of above, we reduce the sentence of the appellants as under.

Sentence of Abdul Hamid is reduced from nine years to eight years nine months, similarly of Prabhunath Sah @ Nath is reduced from nine years to eight years and nine months and that of Md. Nadim from nine years to eight years and four months, the period stated to be already undergone by them. However, sentence of fine and default clause is maintained.

In view of the reduction in the sentence, the rule issued for enhancement of sentence has become infructuous and the same stands discharged.

With reduction of sentence, the appeals are disposed of. Criminal Section is directed to supply urgent photostat certified copies of this order to the parties, if applied for, upon compliance of all necessary formalities.