MOHAMMED TAYAB Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a jail appeal challenging the judgment passed by learned Additional Sessions Judge, Dholpur dated 23 -12 -1988 where by the convicted the appellant for offence Under Section 392 IPC, and sentenced him to undergo two years' rigorous imprisonment and to pay a fine of Rs. 500/ - in default of payment of fine, directed him to further undergo three months' simple imprisonment.

(2.) BRIEF facts, giving rise to this appeal are that a report was lodged on 15th July, 1985 at Police Station, Sarmathuro by Gopal Das (PW 4) that his niece Meena and one Sunita d/o Khateru Lal, were returning after having Darshan of Mahakaleshwar. At that time accused appellant Tayab and one Maharaj Singh Jatav way laid them and at the point of pistol (Katta), they snatched the gold chain from thenect of Mst. Sunita and ran away. The girls raised alarm, hearing which several persons gathered there who chased the accused persons. They found accused Tayab sitting near a stone quarry. When he was sought to be apprehended, he fired a pistol towards villagers. At that time, Gulam Hussain and Pappu were sitting near him. These people also started pelting stones. The pistol fired by Mohd. Tayab, how ever, missed. The villagers too started pelting stones as a result of which Mohd. Tayab sustained injuries He was apprehended but the other two accused escaped. Tayab was produced before the police along with gold -chain which was with him. He also had three live cartridges and one Deshi Katta Case for offences Under Sections 392, 394, 307, IPC and 3/25, Arms Act was registered and investigation commenced. After investigation, police filed a charge -sheet against the appellant along with two other accused persons viz, Pappu (Abdul Jalil) and Gulam Hussain. Prosecution examined 10 witnesses in support of its case. Accused denied the allegations levelled against them. The learned Sessions Judge after trial acquitted Pappu (Abdul Jalil) and Gulam Hussain of the offences charged and the appellant was also acquitted of the offence Under Sections 3/25 and 27 of the Indian Arms Act and Sections 307 and 398, IPC. He was, how ever, convicted and sentenced for offence Under Section 392, [PC as mentioned above. Aggrieved by the same, this appeal has been sent from jail.

(3.) SHRI Sajjan Singh, who had been appointed as Amicus Curiae in the case, assisted this Court in reading the entire record. He submitted that in the instant case there is total lack of evidence to connect the accustd with the offence Under Section 391 IPC in as much as none of the ingredients of the offence is satisfied. The submission of the learned Counsel is that neither there is a consistent evidence about the recovery of the gold -chain nor the remaining piece of it which is alleged to have remained with Mst. Sunita is produced. It is further alleged that the identification of the accused is not established in the case in as much as neither the two girls were knowing the appellant from before either by face or by his name and no identification parade has been arranged in this case. It is also submitted that once the accused is acquitted of offence Under Sections 3/25 and 27 of the Arms Act and as also for offences Under Sections 307 and 398 IPC, he cannot be convicted Under Section 392 IPC.