SALEEM ALIAS SALIM Vs. STATE

JUDGEMENT

(1.) THE present appeal is directed against the judgment and order on sentence dated 31st May, 2000 passed by the learned Additional Sessions Judge convicting the Appellant and the co-accused for offences punishable under section 392/397/34 IPC. Learned Additional Sessions Judge sentenced the Appellant and the co-accused to undergo Rigorous Imprisonment for a period of seven years and a fine of Rs. 5,000/- each and in default of payment of fine to further undergo simple imprisonment for six months. The co-accused Mohd. Aslam had already served the sentence awarded to him by the learned Trial Court thus Crl. Appeal No. 503/2000 preferred by him stands disposed of as infructuous vide order dated 17th May, 2012.

(2.) LEARNED counsel for the Appellant contends that the impugned judgment passed by the learned Additional Sessions Judge is based upon conjunctures and surmises and is bad in law as well as on facts. The learned Trial Court failed to appreciate the factual matrix of the case and ignored the principles of criminal jurisprudence. The conviction of the Appellant is based solely upon the testimony of PW1 Sumitra Devi. This witness has identified the Appellant and the co-accused on the basis of the photographs shown to her by the police during investigation. The witness has in her cross-examination stated that the Appellant was identified through eyes as seen in the photos. It is further stated that this testimony of PW1 is not corroborated by any other evidence and finds no direct or circumstantial evidence in its support. Further, the testimony of this witness does not inspire confidence. Learned counsel further contends that there is no recovery of the stolen articles from the Appellant and the recovery was made from one Mohd. Hanif, who was charged with offence punishable under Section 411 IPC and is acquitted by the learned Trial Court as no cogent evidence was produced against Mohd. Hanif by the prosecution and hence the prosecution failed to prove the charge against him. The State has not preferred any appeal against the said acquittal. Thus in view of this fact that the person from whom the recovery was made is acquitted and that there is no recovery of stolen articles, the identification of the appellant is also not clear and the other prosecution witnesses have not supported the prosecution case, there is no ground available to convict the Appellant. Hence the impugned judgment and order on sentence passed by the learned Additional Sessions Judge be set aside.

(3.) BRIEFLY the prosecution case is that on 29th March, 1992 at about 7.00 P.M. at House No. 5C/11, New Rohtak Road, New Delhi accused Mohd. Aslam @ Aslam @ Ghora, Mohd. Saleem @ Saleem and Mohd. Hanif @ Kalya along with four other persons namely Tara Chand, Sanjay, Mohd. Tasleem and Khaleed armed with deadly weapons and in furtherance of their common intention and conspiracy, robbed one Daya Nand Gupta of cash, jewellary, silver utensils worth Rs. 6-7 lakhs on the point of pistol and knife. Accused Mohd. Aslam was arrested in some other case and in his disclosure statement he disclosed about his involvement in the present case along with the other accused persons. The other accused persons were also arrested and certain robbed articles of jewellary were recoverd at the instance of accused persons which were taken into possession by the police from the jeweller concerned and the accused persons were then arrested in the present case. FIR No. 85/1992 under Section 392/397/120B/34 IPC was registered at PS D.B.G. Road, Delhi against the accused persons on the basis of statement of Shri Daya Nand Gupta. Charge sheet was filed against all the seven accused persons. On 7th December, 1998 after the arguments on charge prima facie no case could be made against accused Tara Chand, Tasleem, Sanjay Jain and Khaleed (PO). Accordingly charges under Section 392/397/34 IPC were framed against the Appellant and Mohd. Aslam. Mohd. Haneef was charged under Section 411 IPC. After recording the statements of prosecution witnesses and the accused persons under Section 313 Cr.P.C. learned Additional Sessions Judge acquitted Mohd. Haneef of the charges framed under Section 411 IPC and convicted the Appellant herein and Mohd. Aslam for the offences punishable under Section 392/397/34 IPC. Learned Additional Sessions Judge vide order on sentence dated 31 st May, 2000 sentenced the Appellant and co-convict as mentioned above. This judgment and order on sentence passed by the learned Additional Sessions Judge are impugned in the present appeal.