RAJPUT TEJSINH PRATAPSINGH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This application has been filed under the provisions of Arts. 226 and 227 of the constitution of India and under sec. 439 Cr. P. a. The petitioner has prayed that by a Writ of Certiorari or by a Writ in the nature of Certiorari or by any other Writ direction or order the judgment and order cst conviction and sentences recorded by the learned Sessions judge Snrendranagar in Sessions Case No. S of 1966 on Slay 20 1966 in so tar rs the said order of conviction and sentence affects the petitioner sentencing the petitioner to suffer R.I. for five years on each count under secs. 394 and 395 I.P.C. be quashed and set aside and by such Writ direction or order the petitioner may be acquitted and be ordered to by set at liberty forthwith. The petitioner has also prayed for an order for bail pending the hearing and final disposal of this petition.

(2.) The facts giving rise to this petition are rather peculiar. The petitioner and five other persons were charged with offences punishable under sec. 395 read with sec. 397 sec. 394 and 6cc. 342 I.P.C. The trial against the six accused persons proceeded before the learned Sessions Judge Surendranagar in Sessions Case No. 5 of 1966. The learned Sessions Judge by his judgment and order dated May 20 1966 convicted accused No. 1 under sec. 395 and 394 I.P.C and sentenced him to R.I. for a period of 7 years and to pay a fine of Rs. 500.00 in default R.I. for six months so far as the charge under sec. 395 I.P.C. was concerned and also sentenced him to R.I. for five years on the charge under sec. 394 I.P.C. The sentences were directed to run concurrently so far as accused No. 1 was concerned. The learned Sessions Judge convicted accused No 3 under sec 395 I.P.C. and sentenced him to R.I. for seven years Accused No. 3 was also convicted under sec 394 I.P.C. and was sentenced to R.I for five years on that count. The present petitioner was accused No. 4 before the learned Sessions Judge and the petitioner was convicted under secs. 395 and 394 I.P.C. and was sentenced to R.I. for five years on each count. The substantive sentences of all the three accused accused No. 1 3 and 4 were directed to run concurrently. Accused Nos. 2 5 and 6 were acquitted by the learned Sessions Judge. The present petitioner i.e. Original accused No. 4 preferred an appeal from jail and that appeal was numbered as criminal Appeal No. 576 of 1965 in this High Court and that appeal was dismissed summarily on July 8 1966 by a Division Bench of this High Court consisting of Vakil & M. U. Shah JJ. Independently of the appeal filed by the present petitioner the other two accused viz. accused Nos. 1 and 3 and preferred Criminal Appeal No. 603 of 1966 and that appeal was filed through their Advocate Mr. A. H. Mehta. That appeal of accused Nos. 1 and 3 was admitted by the Division Bench consisting of Vakil & M. U. Shah JJ. on July 28 1966 The appeal of accused Nos. 1 and 3 was finally disposed of by B Division Bench of this High Court consisting of Bakshi Act. C. J. (as he then was) and Thakor J and the Division Bench allowed the appeal and acquitted accused Nos. 1 and 3 directed that those two accused persons should be set at liberty so far as this case was concerned. This judgment of the Division Bench was delivered on December 15 1967 After that Division Bench judgment was delivered the petitioner has presented the present Special Criminal Application praying for the reliefs set out above.

(3.) The contention of the petitioner is that on a careful appreciation of the entire evidence in the case; the Division Bench while dealing with the appeal of original accused Nos. 1 and 3 has completely disbelieved the prosecution evidence; and accordingly the petitioner has filed this application so that in the interests of justice the High Court may set aside the order of conviction and sentence passed by the learned Sessions Judge against the present petitioner. As we have pointed out earlier the the present application has been filed under three alternative provisions of law viz. Articles 226 and 227 of the Constitution and the revisional jurisdiction under sec. 439 Cr. P. C.