Rongon Mukhopadhyay, J.No one appears on behalf the petitioner. However Mr. Asif Khan, learned A.P.P. for the State is present.

2. Since this matter is pending since 2002 the same is being disposed of based on the material available on record.

3. In this application the petitioner has challenged the judgment dated 08.05.2002 passed in Cr. Appeal no. 25 of 1991 by the learned VIIth Additional Sessions Judge, Hazaribagh, whereby and where under the judgment and order of conviction and sentence dated 28.01.1991 passed by the learned Judicial Magistrate, 1st Class, Hazaribag in G.R. Case No. 2113 of 1989 convicting the petitioner for the offences punishable under Section 457 and 380 of the Indian Penal Code and sentencing him to undergo R.I. for two years under Section 457 of the I.P.C. and R.I. for one year and six months for the offence punishable under Section 380 of the I.P.C. has been affirmed.

4. A First Information Report was instituted on the fardbeyan of P.W. 2 (Informant) on the allegation that in the night of 28/29.10.1989 while the informant was sleeping in his house he heard some sound and on waking up he saw some persons present in his house. Alarm was raised by the informant at which the culprits fled away but with the help of the villagers one of the miscreant was apprehended who disclosed the name of the petitioner.

5. Based on the aforesaid allegation G.R. Case No. 2113 of 1989 was instituted. After investigation charge-sheet was submitted under Section 457/380 of the Indian Penal Code in which cognizance was taken and thereafter the case was tried by the learned Judicial Magistrate, 1st Class, Hazaribag. In course of trial five witnesses were examined on behalf of the prosecution. P.W.2 is the informant who has stated that while he was sleeping in the intervening night between 28-29.10.1989 he heard some sound and on waking up saw some miscreants variously armed inside his house. On raising an alarm miscreants fled away but with the assistance of the villagers one miscreants named as Chetlal Ganjhu was apprehended who disclosed the name of the petitioner. This witness has further stated that in spite of the night being dark the petitioner was identified because the petitioner was known to him prior to the occurrence as the petitioner was also a resident of the place where the informant was residing. P.W. 1 (Ram Pukar Jha) has proved his signature on the seizure list and stated that he knew both the informant as well as the accused persons. P.W.3 (Pankaj Kumar Singh) is the son of the informant who has also stated on similar terms. This witness has further stated that the informant and the petitioner were known to each other from the beginning. P.W.4 (Ramesh Kumar Singh) has stated that on hearing the cry of alarm he had gone to the house of the informant and had also chased the miscreants out of which one of the miscreants was caught. P.W.5 is the A.S.I. of Police who had proved the formal First Information Report before the learned trial court. The defence had raised a plea that there are several discrepancies with the fardbeyan as well as the evidence of P.W. 2. It has also been stated that since it was completely dark at the time of the incident the identification of the petitioner by P.W. 2 was itself doubtful. Further stress has been made on the fact that the Investigating Officer of the case has not been examined apart from non-examination of several material witnesses.

6. On perusal of the evidence of P.W.2, the informant, it appears that there was sufficient light inside the house to have identified the petitioner. P.W.2 has very categorically stated about the presence of electricity in his house at the time of the incident. This witness has also stated that the petitioner also resided in Religarha and therefore there was prior acquaintance between the petitioner and the informant. The identification of the petitioner thus by the informant cannot be brushed aside as sufficient source of light seems to have been present at the time of such identification. Apart from the said fact there has been consistent evidence on the point of apprehending Chetlal Ganjhu who had also disclosed the name of the petitioner as one of the miscreants who had tried to commit theft in the house of the informant. P.Ws. 1, 3 and 4 have therefore been consistent in their evidence and the evidence of P.W. 2 the informant has sufficiently been corroborated by the other witnesses. P.W. 1 and P.W. 4 are independent witnesses and are neighbours of the informant P.W. 2. The learned trial court on proper appreciation of the evidence available on record has rightly come to a conclusion about the petitioner committing an offence under Section 457 and 380 of the Indian Penal Code and convicted him accordingly. The learned appellate court also based on the materials available on record had affirmed the judgment and order of conviction passed by the learned trial court. There being no reason to conclude otherwise, the judgment and order of conviction passed by the learned trial court and as affirmed by the learned appellate court is hereby sustained.

7. However, with respect to the sentence which has been imposed upon the petitioner it appears that the petitioner is facing the rigors of the prosecution case since the year 1989 and the petitioner has also for some time remained in custody out of a maximum sentence of two years R.I. imposed by the learned trial court. Considering the aforesaid scenario the period of sentence awarded to the petitioner is modified to the period already undergone.

8. This application stands dismissed with the aforesaid modification in sentence.