AFZAL @ AJMAL Vs. STATE

JUDGEMENT

(1.) Based on the testimony of Aditya Kumar (PW-2) and subsequent identification of the appellant in the Court, Afzal @ Ajmal was convicted for the offences punishable under Section 392/397 IPC vide impugned judgment dated 29th September, 2015 and sentenced vide order on sentence dated 9th October, 2015 directing him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 5000/- and in default whereof to undergo simple imprisonment for a period of six months for the offence punishable under Section 392 IPC and rigorous imprisonment for a period of seven years for the offence punishable under Section 397 IPC. Afzal @ Ajmal has challenged the impugned judgment of conviction and order on sentence in this appeal.

(2.) Learned counsel for the appellant contends that the learned Trial Court erred in basing the conviction by relying upon the testimony of Jyoti Gupta, mother of Aditya Gupta, which was recorded in the earlier trial where the appellant was neither tried nor declared a proclaimed offender, thus not meeting the pre-requisites of Section 299 Cr.P.C. Reliance is placed on the decision of the Supreme Court reported as Nirmal Singh Vs. State of Haryana, 2000 AIR(SC) 1416. Jyoti Gupta's testimony was never put to the Appellant during his examination under Section 313 Cr.P.C. He submitted that Jyoti Gupta and Aditya Gupta identified four persons who participated in the robbery, out of whom two i.e. Pankaj and Jitender pleaded guilty, who were convicted for offences punishable under Sections 392 and 397 IPC respectively while Subhash and Madan were convicted for offences punishable under Section 411 IPC. He further submits that the role of holding Aditya Gupta at gunpoint was assigned to Pankaj in the first trial for which he has already been convicted. Namrata Gupta, daughter of Jyoti Gupta who was present at the time of the incident has not been examined as a witness. Reliance has been placed on the decision of the Supreme Court reported as Govindaraju Vs. State, 2012 4 SCC 722. Aditya Gupta has made substantial improvements in his statement before the Court as against the statement given by him to the police. He identified the appellant in Court after having seen him in the police station where he had gone to enquire about the status of the case. There was a gap of almost 10 years between the date of incident and the arrest of the appellant, thus identification is highly improbable. No recovery has been made from the appellant of the alleged weapon of offence.

(3.) Learned APP for the State on the other hand contends that the learned Trial Court has rightly convicted the appellant based on the testimony of Aditya Gupta who was an eye-witness to the incident and who identified the appellant in Court. He was cross-examined at length but his testimony could not be shaken. The appellant along with Ganga and Manoj were named in the disclosure statement of the convicts in the previous trial. She submits that Aditya Gupta has corroborated the testimony of Jyoti Gupta on the material aspects which was recorded in the earlier trial, however, she could not be examined in the trial of the appellant since she had passed away. The pre-requisites of Section 299 Cr.P.C. are satisfied in the present case as the appellant had been declared proclaimed offender by the learned Trial Court vide order dated 16th October, 2008. Furthermore orders dated 22nd September, 2014, 25th September, 2014, 29 th September, 2014, 9th December, 2014 and 16th December, 2014 clearly show the fact of appellant being proclaimed offender was duly considered by the learned Trial Judge. Appellant was provided with all the documents of the previous trial at the time of filing of charge-sheet qua him, however he never objected against the use of evidence recorded in the previous trial.