GHANSHYAM @ BABLU Vs. STATE

JUDGEMENT

(1.) THIS common judgment shall dispose of the aforesaid three appeals filed against the judgment delivered by the Additional Sessions Judge, dated 10.04.2007 in Sessions Case No. 89/06 arising out of the FIR bearing No. 560/2003 of P.S. Ashok Vihar whereby, the Additional Sessions Judge has convicted all the appellants under Section 395/ 397 IPC vide order dated 10.04.2007 and has been pleased to sentence all of them to undergo RI for 07 years with fine of Rs.2000/- each and in default of payment of fine, further undergo additional RI for 02 months each vide order dated 10.04.2007.

(2.) IN nutshell the case of the appellant is that the prosecution has not been able to prove its case beyond reasonable doubt. The evidence led by them suffers from number of infirmities and is not trustworthy. The judgment is also not legally sustainable for the reason that the reliance placed upon testimony of PW-1 and PW-7 regarding identification of the appellants is not reliable inasmuch as, all the appellants were shown by the Police to the witnesses before sending them to participate in test identification parade. This is fortified from the fact that none of the appellants were arrested at the spot. It has come in the evidence of the witnesses, that despite arrest of the appellant Ghanshyam @ Bablu and Raju @ Katuwa on 01.04.2004, they were produced for TIP only after a week or so in unmuffled face. Their photographs were also shown to the witnesses which washes away the evidentiary value of their identification in TIP proceedings . Refusal by one of the appellant to participate in TIP in the circumstances as disclosed is not fatal and cannot be used against him. As regard to the recovery of the briefcase at the instance of appellant Avdhesh @ Akhlesh Singh it has been submitted that the said recovery also cannot be used against appellant inasmuch as even though briefcase is mentioned as part of the robbed articles, there is nothing which may identify the briefcase so as to make it distinct. Regarding the contents of the briefcase it is submitted firstly that there is nothing mentioned about the contents of the briefcase in the list and secondly no public witness has been associated with the recovery. The preparation of the list of articles after the arrest of Avdesh and non recovery thereof on the first day of his remand also cast serious doubt on the said recovey. It is also submitted by the appellants that in the facts of this case, no case under Section 395 IPC was made out as only three persons have been arrested whereas Section 395 IPC requires involvement of at least five persons. As regard to minimum punishment awarded under Section 397 IPC it has been submitted no weapon was recovered at the instance of the appellants and further evidence of the labourers who were present at the spot at the time of the incident as deposed by PW-7 Anjum Arora has not been led to support the case of the prosecution, in fact none of them even examined. It is also stated that the appellants are already in jail for a period of almost 6 years and therefore, even otherwise they are entitled to be released.

(3.) TO understand the controversy between the parties it would be appropriate to refer to the complaint filed by the complainant PW-7 Sh. Anjum Arora which is Ex PW-7/A and which is also the basic of registration of the FIR.