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.
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.
(S.B. SINHA)