Mohmad
Ali Vs. State Rep. By Insp. of Police [2009] INSC 541 (17 March 2009)
Judgment
CRIMINAL
APPELLATE JURISDICTION CRIMINAL APPEAL NO. 482 OF 2009 [Arising out of
SLP(Crl.) No. 1591/2008] MOHAMED ALI ... APPELLANT(S) :VERSUS:
ORDER
Leave
granted.
Initially,
nine persons were charged for commission of offences under Sections 395 and 397
of the Indian Penal Code (IPC). The appellant was one of them.
The
learned Trial Judge, however, acquitted all the accused in respect of offence
punishable under Section 397 of the IPC. However, the learned Trial Judge
having found them guilty for commission of an offence under Section 395 I.P.C.,
sentenced them to undergo rigorous imprisonment for a period of 10 years.
By reason
of the impugned judgment the High Court, however, has acquitted all the accused
persons except the appellant herein. It was recorded by the High Court:
"Surprisingly
and shockingly, even though horrendous and horrible crime took place, owing to
faulty investigation and lack of co- operation from the witnesses except as
against A-1, the prosecution cannot succeed in driving home the guilt as
against other accused.
Accordingly,
Point Nos. (ii) and (iii) are also answered."
Indisputably,
all the witnesses who were examined on behalf of the prosecution to prove the
alleged extra judicial confession with regard to recovery of materials turned
hostile. The prosecution witness to the Mahazar in regard to the currency notes
has not been examined. The evidence of the witnesses for the purpose of
identifying the accused persons, except the appellant herein, has also not been
relied upon.
As all
the other accused persons have been acquitted, we are of the opinion that no
case has been made out for commission of offence under Section 395 of the I.P.C.
The allegations made against the appellant, at best makes out a case against
him for commission of offence under Section 392 of the I.P.C.
-3- It is
stated before us that the appellant has been in custody for a period of seven
years. In that view of the matter, we alter the conviction and sentence of the
appellant from one under Section 395 to Section 392 of the I.P.C. and sentence
him to the period already undergone by him.
The
appeal is allowed to the aforementioned extent.
..........................J (S.B. SINHA)
..........................J (Dr. MUKUNDAKAM SHARMA)
NEW DELHI,
MARCH 17, 2009.
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