PAPPU & ANOTHER Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The accused - appellants have preferred these separate appeals under Section 374 Cr.P.C. against the judgment of conviction and order of sentence dated 31.08.2012 passed by the Additional Sessions Judge (Fast Track) No.1, Jhunjhunu in Sessions Case No.115/2011 (03/2009) whereby each of the appellants has been convicted for offence under Section 395 IPC and sentenced to suffer rigorous imprisonment for ten years and a fine of Rs. 5,000/ - and in default thereof to further undergo simple imprisonment for six months. As the aforesaid appeals arise out of the same judgment and order, with the consent of learned counsel for the parties, the same were heard together and are being disposed of by this common order.

(2.) Brief relevant facts for the disposal of these appeals are that for an incident occurring in the mid - night of 11.09.2001 and 12.09.2001 at the residential house of the complainant - Shri Surendra Singh, a written report was submitted before SHO Police Station Mandana to the effect that several unknown persons forcibly entered into their house and by using force and making threat to his sister and mother, who were present at the time of incident in the house, took away gold and silver ornaments and Rs. 2,000/ - in cash from their possession. On the basis of aforesaid report, FIR No.100/2001 for offence under Section 392 IPC was registered and after investigation charge - sheet against the appellants was filed for offence under Section 395 IPC. During investigation the appellants were arrested and identification parade was also conducted and they were identified by PW7 - Sushila as the persons involved in the aforesaid incident. In support of the charge - levelled against the appellants, prosecution produced oral as well as documentary evidence whereas in their statement recorded under Section 313 Cr.P.C. the appellants denied the evidence produced by the prosecution, but they did not produce evidence in defence. The learned trial Court after hearing both the parties passed the aforesaid judgment and order.

(3.) Assailing the impugned judgment, learned counsel for the appellants submitted that the main evidence produced by the prosecution in support of the charge levelled against the appellants is the identification made by PW7 - Sushila during trial which was further corroborated by the identification of the appellants during identification parade conducted during investigation after arrest of the appellants, but this evidence is of no evidentiary value as this witness in her cross examination has admitted that the appellants were shown to her at the Police Station Nechhwa where they were present after their respective arrest. It was further submitted that the evidence of a witness based on, identification of an accused involved in such an incident during trial after a long period from the date of the incident is a weak type of evidence more particularly in view of the fact that the accused were not known to the witness prior to the alleged incident. It was also submitted that it is an admitted position that neither the cash nor the ornaments allegedly looted during the incident were recovered from the possession of any of the appellants. It was also contended that recovery of a knife at the instance of one of the accused - appellants namely - Shri Pappu during investigation allegedly used during the incident is also of no avail as there is no evidence produced showing that the recovered knife is the same which was used by him during the incident.