MOHD SALEEM @ SALIM Vs. STATE

JUDGEMENT

(1.) The present appeal is directed against the judgment and order on sentence dated 31 st 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 17 th 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.) Per contra learned APP for the State contends that the impugned judgment suffers from no infirmity and the prosecution witnesses have clearly deposed against the Appellant. His role is described by the witnesses and he has been identified by both PW1 and PW2. PW1 has stated that the Appellant was carrying a knife and co-convict was carrying a revolver at the time of incident. The prosecution has proved its case beyond reasonable doubt against the Appellant. Hence the present appeal has no merit and is liable to be dismissed.