Zainul Abidin vs The State of Bihar

B.N.P. Singh, J.—The Petitioner suffered conviction u/s 414 of the Indian Penal Code on being tried by Shri D. Pandey, Subdivisional Judicial Magistrate, Aurangabad in G.R. No. 1344 of 1991 and was sentenced to suffer rigorous imprisonment for a term of three years, on accusations, as transpiring in statement of Bishwanath Rai, Officer-in-charge, Kasba P.S. that on 17th September, 1991 after the house premises of the Petitioner was searched by police officials in connection with investigation of Kasba P.S. Case No. 33 of 1991, registered u/s 395 of the Indian Penal Code, seizure of some offending articles which were ornaments, watch etc. were found concealed below the earth. A regular police case had been registered u/s 414 of the Indian Penal Code against the Petitioner at Kasba P.S., pursuant to which, chargesheet was laid before the Court to put the Petitioner on trial. In the eventual trial that commenced, the State examined altogether four witnesses, two of whom were formal while two were police officials including the investigating officer who stated about recoveries of these offending articles from the house of the Petitioner and the trial Court considering the witnesses to be credible, recorded finding of guilt and sentenced the Petitioner in the manner stated above. The aggrieved Petitioner carried the matter in appeal and the appellate Court while endorsing finding recorded by the trial Court, dismissed the appeal. Now the aggrieved Appellant has invoked jurisdiction of this Court in revision and this revision was admitted for hearing only on the point of sentence.

Learned Counsel appearing for the Petitioner would fairly urge that, in view of direction of the Court recorded during admission of the appeal, he has to argue the case of the Petitioner within the said confines. It is brought to my notice that the Petitioner against whom no evidence about identity of the offending articles, found in his premises to establish his guilt, was placed on the record, has remained in custody both as under trial prisoner and also during the post conviction period for more than ten months and since the prosecution was launched against the Petitioner in the year 1991, this mitigating circumstance too deserves consideration for consideration of imposition of sentence. The prosecution was launched against the Petitioner in the year 1991. As Petitioner has remained in custody for more than ten months and has suffered the ordeal of protracted prosecution for about eleven years, he is sentenced to the period all ready undergone by him, and with this modification in sentence, the revision is dismissed.