Rongon Mukhopadhyay, J.Heard Mr. P.A.N. Roy, learned counsel for the petitioner and Mr. Vikash Kishore, learned A.P.P. for the State.

2. This application is directed against the judgment dated 01.09.1999 passed in Cr. Appeal no. 1 of 1998 by Sri R.P. Srivastava, 4th Additional Judicial Commissioner, Ranchi whereby and whereunder the appeal preferred by the petitioner against the judgment and order of conviction and sentence dated 15.12.1997 passed by the learned Judicial Magistrate 1st Class, Ranchi in G.R. No. 916 of 1990 convicting and sentencing the petitioner for the offences punishable under section 406, 420 of the I.P.C. has been dismissed.

3. The First Information Report reveals that the informant and other prosecution witnesses had caught one Rickshaw puller with five bags of cement and he was taken to the Police Station wherein it was disclosed that the cements belonged to the State Government and was misappropriated by the petitioner who had asked the Rickshaw puller to deliver five bags of cement to the house of one Dr. Bahra. After investigation Police has submitted charge-sheet under section 406, 420 of the I.P.C. and after framing of charge trial proceeded and ultimately the petitioner was convicted by the learned Judicial Magistrate, 1st Class, Ranchi in G.R. No. 916 of 1990 vide judgment dated 15.12.1997 under section 406, 420 of the I.P.C. and was sentenced to undergo R.I. for a period of 2 years each. Both the sentences were to run concurrently.

4. Being aggrieved by the judgment and sentence dated 15.12.1997 the petitioner has preferred an appeal being Cr. Appeal no. 1 of 1998, which however was also dismissed on 01.09.1999.

5. It has been submitted by the learned counsel for the petitioner that the petitioner had been implicated only on the basis of the disclosures made by the Rickshaw puller. Learned counsel for the petitioner further submits that non examination of the I.O. has caused prejudice to the defence as the I.O. could have thrown some light on the apprehension of the Rickshaw puller and taking him into the Police Station wherein he had disclosed about the petitioner. It has also been stated that P.W. 1 to 6 are all hearsay witnesses and so far as P.W. 7 is concerned he has also not disclosed about the make of the cement. Learned counsel further submits that the petitioner is facing the rigors of trial since 1990 and out of a sentence of 2 years he has remained in custody for a period of 14 days.

6. Learned A.P.P. has supported the impugned judgment.

7. It appears from the record that seven witnesses were examined by the prosecution in support of its case. P.W. 1 Bhora Oraon has stated about the disclosure made by the Rickshaw puller. Similar statement has been given by the other witnesses. So far as the informant P.W. 5 is concerned he has stated that the accused used to supply the cement in constructing Panchayat Bhawan which was being constructed at village Asaro under the Jawahar Rojgar Scheme in black market at higher price and misappropriated the cement along with other persons. It further appears that the cement bags which were seized from the Rickshaw revealed that the same belonged to the State Government and was being misappropriated. The witnesses therefore have been consistent with respect to the recovery of the cement bags. Non examination of the I.O. will not falsify the statement of the prosecution witnesses as the place of occurrence has been established by virtue of the evidence of the other witnesses. There does not appears to be any contradiction with respect to the statement of the witnesses and on such facts having been considered by the learned court below the petitioner was convicted under section 406, 420 of the I.P.C. and sentenced accordingly. Since the prosecution had proved the case beyond any reasonable doubt in course of trial and which was affirmed by the learned appellate court, no interference is necessitated in the impugned judgment and order of conviction.

8. However, in view of the fact that the petitioner is facing the rigors of criminal prosecution since 1990 and almost 27 years have lapsed in the prosecution of the petitioner and since the petitioner has already remained in custody for a fortnight, taking a considerate view of the long pendency of the case while affirming the judgment of conviction passed against the petitioner the sentence awarded to the petitioner is modified to the period already undergone by him.

9. This application is therefore disposed of with the aforesaid modification in sentence.