MAHISYRALI MAHAMMAD VAKIL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appeal is preferred by the applicant-orig.accused no.5 (hereinafter referred to as 'the appellant') under Section 374 of the Code of Criminal Procedure, 1973, against the judgment and order of conviction and sentence dated 03rd May 1991 passed by the learned Extra Assistant Judge and Additional Sessions Judge, Surat in Sessions Case No.76 of 1990. The present appellant as well as other five accused persons were charged and tried by the learned trial Judge for the offences punishable under Sections 395, 397, 363, 342, 399 read with Section 120(B) of the Indian Penal Code and also under Section 25-A of the Arms Act. After conclusion of the trial, the learned trial Judge has been pleased to hold the appellant herein guilty of the charge of offences punishable under Sections 395, 363 read with Section 120(B) of the Indian Penal Code and directed him to undergo rigorous imprisonment for three years on each count and to pay a fine of Rs.100/- for each offence proved and in default of payment of fine, the appellant shall undergo simple imprisonment for 15 days for each count. The learned trial Judge has ordered the sentences to run concurrently.

(2.) The appellant has challenged the legality and validity of the judgment and order of conviction and sentence under challenge on various grounds mentioned in paragraph no.1 of the memo of the appeal. Considering the quantum of punishment imposed by the learned trial Judge and the fact that the present appellant was on bail pending trial, this Court has enlarged the appellant on bail pending hearing and final disposal of the present appeal vide order dated 17th September 1991 and therefore, at present the appellant is on bail.

(3.) The learned trial Judge on conclusion of the trial decided to acquit the orig. accused nos.1 and 2, however, held the orig. accused nos.4 to 6 guilty of the aforesaid charges. As this Court is informed by Shri R.R. Marshall, learned counsel appearing for the appellant and Ms.M.S. Panchal, learned Additional Public Prosecutor, that the orig.accused nos.3, 4 and 6 have not challenged the judgment and order of conviction and sentence and, therefore, now the Court shall have to evaluate the legality and validity in the strength of the judgment and order of conviction and sentence in reference to the case placed by the appellant. As per the basic story of the prosecution, a group of about 8 to 10 accused persons was holding deadly weapons like revolver, knife, etc. and so they were chargesheeted by the Investigating Agency accordingly saying that some of the accused persons were absconding yet. At an initial stage, the Police had chargesheeted accused persons for the offence punishable under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA Act), but considering the nature of allegations made against the accused persons and other relevant papers of investigation submitted along with the chargesheet by the Police, the learned Sessions Judge passed an order on 20th April 1990 that the case against the accused persons should be tried as Sessions Case only and, therefore, the trial has been conducted by the learned Additional Sessions Judge treating the charge under the TADA Act as dropped.