GAFFAR ALIAS FARUK Vs. STATE OF U P

JUDGEMENT

(1.) THESE four criminal appeals are directed against one common judgment of the Fast Track Court No. 2, Gautam Buddh Nagar dated 06.11.2007 made in Sessions Trial Nos. 639/06 and 639A/06 arising out of Case Crime No. 30 of 2006, Police Station Sector 49, NOIDA, District-Ghaziabad. Under the judgment in appeal the Sessions Court has convicted the four appellants as well as one Munir and Viplav under Sections 395, 397, 506, 412 IPC. The convicts have been sentenced with life imprisonment plus fine of Rs. 10,000/- each, in case of default in payment of fine one year additional imprisonment for the offence under Section 395 IPC. For the offence under Section 397 IPC, 7 years rigorous imprisonment has been imposed upon each. For the offence under Section 412 IPC, 7 years rigorous imprisonment plus fine of Rs. 5000/- upon each, in case of default in the payment of fine, six months additional imprisonment. For the offence under Section 506 IPC the accused have been sentenced one year's imprisonment plus fine of Rs. 2000/- each. In case of default in payment of fine, two months additional imprisonment. It has been provided that the time spent in jail shall be adjusted in the sentence and the sentences shall run concurrently.

(2.) IT may be recorded that the convict Munir and Viplav have not filed any appeal against their conviction/sentence. The case of the prosecution, as reflected from the records is as follows:

(3.) THE statement of all the accused was recorded on the spot wherein they confessed that they had committed the crime. It was stated by them that the goods, which are in their possession were the looted property and that they were proceeding for disposing off the said goods. THE goods recovered along with illegal arms were sealed. After the investigation was completed, charge-sheet was submitted under Sections 395, 397, 506 & 412 IPC. THE charges were framed against all the accused on 02.01.2007 by the trial court under the aforesaid sections. THE prosecution produced the informant PW-1 Rakesh Mohan Bakshi, his wife Jaypee Bakshi as PW-2 , S.I. Mahesh Mishsra was examined as PW-3, S.O. Jaspal Singh was examined as PW-4, S.I. Vishwajeet Singh was examined as PW-5 and ASI Jai Singh was examined as PW-6. THE accused made their statement under Section 313 IPC. THEy denied the prosecution story and stated that they have been falsely implicated. However, the accused did not lead any evidence in their defence. THE trial court, after considering the evidence brought on record and after examining the material evidence, held that the accused were guilty of offence under Sections 395, 397, 506 and 412 IPC. THEy were accordingly convicted and sentenced on all the four counts, as already noticed herein above by us. It is against this order of the trial court that the present appeals have been filed. We have heard Sri Sunil Singh, Advocate on behalf of the appellants and Sri Arunendra Kumar Singh, learned A.G.A. on behalf of the State in all the four appeals. Counsel for the appellants contended that there is no evidence worth its name which could have led the trial court to come to a conclusion that the accused had committed any offence under Sections 395, 397 IPC. It is stated that the only evidence, which has been referred to by the trial court for holding that the accused were the persons involved in dacoity on 12/13.02.2006 are the statement of PW-1 and PW-2. It is the case of the appellants that the statements of PW-1 and PW-2 are not sufficient to establish beyond reasonable doubt that the appellants had committed the offence of dacoity referable to Section 395 IPC and 397 IPC. Counsel for the appellants submits that the two witnesses had only stated that perhaps the accused who are present in the court were the person who had committed the dacoity. Something more than mere likelihood/doubt is required to be established for bringing home the criminal offence alleged. He submits that it is settled principle of criminal jurisprudence that for the guilt in a criminal offence being established it is but necessary that the involvement of the accused must be proved beyond all reasonable doubts. THE use of word 'Shayad' i. e. perhaps/likelihood by both PW-1 and PW-2 is in itself sufficient to establish that they were not sure that the accused were involved in dacoity. THErefore, it cannot be said that the prosecution has been able to establish beyond all reasonable doubt that the offence has been committed by the appellants. It is his case that neither any identification had taken place nor the appellants were otherwise identified by any other person or by any other means to be involved in offence under Section 395, 397 IPC. Faced with the aforesaid contention learned A.G.A. initially made an attempt to suggest that the finger prints obtained from the site of dacoity were matched with the finger print of the appellants and probably on that basis they have been found to be involved in the offence. However, he admitted that except for statement of PW-1 and PW-2 there is no other evidence to implicate the appellants, for the offence under Section 395/397 IPC. We have considered the submissions made and have examined the records. THE relevant portion of the statements of PW-1 and PW-2 reads as follows:-