Amin Khan Vs. State of
Rajasthan & Ors. [2009] INSC 406 (25 February 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 385 OF 2009
(Arising out of SLP (Crl.) No. 33 of 2007) Amin Khan ..Appellant Versus State
of Rajasthan and Ors. ..Respondents
Dr. ARIJIT PASAYAT,
J.
1.
Leave
granted.
2.
Challenge
in this appeal is to the judgment of a Division Bench of the Rajasthan High
Court, Jaipur Bench. Six persons faced trial for alleged commission of offences
punishable under Section 396 of the Indian Penal Code, 1860 (in short the
`IPC') and Sections 3 and 35 of the Arms Act, 1959 (in short the `Arms Act').
The learned Sessions Judge, Alwar, acquitted the accused persons of all the
charges. Being aggrieved by the finding of learned Sessions Judge the State
filed an application seeking leave to appeal under Section 378 (3) of the Code
of Criminal Procedure, 1973 (in short the `Code'). On 26.5.2006 the High Court
granted leave and summoned the respondents through bailable warrants. On
14.8.2006 the State filed an application in terms of Section 390 read with
Section 482 of Code for revoking the earlier order and to commit the accused
persons to prison after summoning them through non bailable warrants. A similar
prayer was also made in the Revision Petition filed by widow of the deceased.
The prayers were
accepted by the impugned orders.
The High Court noted
that in the Test Identification Parade (in short the `TI Parade') held on 20th
and 22nd March, 2005 Banwari Lal (PW-18) had correctly identified the accused
persons. He also identified the accused persons in the trial Court. The foot
prints of the respondents left at the spot were taken on 23.3.2005 before the
learned Additional District Magistrate, Alwar and as per the Forensic Science
Laboratory report foot moulds were found to be that of the accused persons. The
investigating agency also seized hair from the hands of the deceased and as per
DNA report, the seized hair tallied with the hair of accused Mubin and Amin. As
per the testimony of the Investigating Officer various criminal cases were
pending against the accused persons.
Stand of the State as
well as the petitioner in the revision petition was that the acquittal of the
respondents was based on mere presumptions without considering the evidence on
record and, therefore, it was liable to be set aside.
3.
Learned
counsel for the accused contended that the presumption as to the innocence of
the accused stands fortified by their acquittal by the trial Court. It was
urged that refusal of bail is never for the purpose of punishment. In view of
the long period taken for disposal of appeals, it would be improper to send the
accused to custody. The evidence of identification was also pointed out to be
without foundation and therefore the trial Court rightly discarded it.
4.
The
High Court considering the rival stands passed the following order:
"On giving our
thoughtful consideration to the nature of the accusation made against the
accused respondents, the manner in which the crime is alleged to have been
committed and the gravity of the offence we direct that warrant of arrest be
issued against the accused respondents Mubin and Amin and they be produced
before the learned Sessions Judge, Alwar who shall commit them to prison
pending the disposal of appeal.
We however grant bail
to accused respondents Taiyab, Ilias, Islam and Khursheed and direct on
furnishing personal bond in the sum of Rs.50,000/- with one surety of the like
amount they be released on bail on the following conditions:- (i) They will not
commit any offence during the pendency of appeal.
(ii) On the last day
of each month they will appear before the SHO Police Station, MIA Alwar who
shall refer their presence in the daily Rajnamcha.
5.
The
order is questioned by the accused persons. Two Special Leave Petitions were
filed. By order dated 21.11.2008 prayer was made for withdrawal of SLP (Crl.)
No.432 of 2007. The same was dismissed as withdrawn.
6.
So
far as the present appeal is concerned it is submitted that the true scope and
ambit of Section 390 of Code has not been kept in view.
7.
Learned
counsel for the respondents on the other hand supported the judgment.
8.
Section
390 of Code reads as follows:
"Arrest of
accused in appeal from acquittal- When an appeal in presented under Section
378, the High court may issue a warrant directing that the accused be arrested
and brought before it or any subordinate Court, and the Court before which he
is brought may commit him to prison pending the disposal of the appeal or admit
him to bail."
9.
To
prove allegations of dacoity under Section 396 IPC against accused persons, the
prosecution has to prove that the accused persons were five or more than five
in number. On 12.3.2005 at about 08.00 P.M. in the night the accused persons
assaulted the accountant Chhote Lal at Radha Kishan filling Station (Petrol
Pump) and fled away jointly with the booty of Rs.1,61,800/-.
10.
In
committing this plunder, one of the accused persons murdered Raj Kumar Goyal,
the owner of Petrol Pump by firing a shot from the gun.
11.
It
is the averment of respondents that by the eye witness' evidence of the
prosecution, it is proved that while committing dacoity, murder of Ramavtar
Goel, was committed by firing a shot from a 12 bore gun by the accused Mubin.
12.
It
is also the averment of prosecution that the evidence also confirms commission
of offence by accused persons. Foot prints and finger prints of accused persons
have been taken from the spot. In this context, positive report has been
received from FSL, Jaipur. Hair of accused persons left in the nails of hands
of the deceased were tested with the blood sample of accused persons and
positive report in relation to accused persons Mubin and Amin, was found on DNA
test. Fire arms were discovered on the information of accused persons. On the
information of accused Mubin one 12 bore one barrel country made gun was
discovered, forensic report of cartridges obtained from the spot, and of the
blood obtained from the body of the deceased, prove that this cartridge and
pellets were fired from the gun of accused Mubin. It is the case of the
prosecution that offence punishable under Section 396 IPC is proved beyond
doubt.
13.
On
behalf of prosecution, two eye witnesses of the happening, Banwari Lal (PW 10)
and Jaswant Singh (PW-19) were produced.
14.
In
order to resolve the controversy poised for our consideration, it will be
useful to have a look at Section 390 Cr.P.C. which provides thus:
"When an appeal
is presented under Section 379, the High Court may issue a warrant directing
that the accused be arrested and brought before it or any subordinate court,
and the court before which he is brought may commit him to prison pending the
disposal of the appeal or admit him to bail."
12. Section 390
corresponds to Section 427 of the repealed Code. In the present section the
word and figure "Section 378" are substituted for the words and
figures "Section 411-A sub section (2) of Section 417" in the old
Section. Except for this change, no other changes are made. Under this section
the High Court has the power to re-arrest the accused pending the disposal of
an appeal against his acquittal.
13. The High Court
has found that prima facie the evidence regarding identification made in court
and DNA test has not been considered in the proper perspective by the trial
Court. It was noted that the DNA report of the hair allegedly seized from the
hands of the deceased prima facie established that it was of the accused Mubin
and Amin who remained throughout the trial in custody. That being so, we do not
find any infirmity in the impugned judgment to warrant interference.
14. The appeal is
dismissed.
........................................J.
(Dr. ARIJIT PASAYAT)
........................................J.
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