- (1.) THESE two appeals have been filed by the appellants Ramzan, Liyakat and Jamil Khan against the judgment dated November 30, 2004 of Addl. Sessions Judge (Fast Track) No. 1 Alwar in Sessions Case No. 119 of 2003 (135 of 2003) whereby the accused appellants Ramjan, Liyakat and Jamil Khan were convicted and sentenced under S.395, IPC, to suffer 10 years R.I. with fine of Rs. 2,000/- each in default of payment of fine to further suffer one year R.I. under S.397, IPC to suffer 7 years RI and fine of Rs. 5000/- each and in default of payment of fine to further suffer one year R.I. and accused appellants Ramjan and Jamil Khan were further convicted and sentenced under S.3/25 of the Arms Act to suffer 3 years R.I. with fine of Rs. 1,000/- each and in default of payment of fine to suffer six months R.I.
(2.) AS both these appeals have been filed against the judgment dated November 30, 2004 in FIR Ext. P19 (written report Ext. P 18), they are being disposed by this common judgment. Brief facts of the case are that on July 28, 2003 at 3.30 a.m. complainant Lallu Khan s/o Roopa submitted a written report (Ext. P 18) at PS. M.I.A. Alwar Camp Thekda ka Bas alleging therein that in the night at around 1.30 'o'clock wife of the complainant went outside the house to answer the natural call then 7-8 persons forcefully entered in the house and started beating his wife and snatched the ornaments which she was wearing. They also snatched the wrist watch of the complainant and some money from his pocket. On hearing hues and cries his younger brother reached over there. The miscreants while started running one amongst them was caught who sustained injuries due to fall. The miscreant who was caught disclosed his identity as Razaq and informed that his other associates were 7 in number and their names are Mehboob, Ashram, Jameel, Taiyab, Zahid, Ramzan and Liyakat, who are having arms with them and looted articles are also with them. It is further alleged that the complainant and others tried to catch them, however, they opened fire and ran away. His son Subedin and wife sustained injuries. On the aforesaid report, the police registered case against the accused persons for the offences under S.395, S.397, IPC and 3/25 Arms Act and the investigation as started. After concluding the investigation the police submitted charge - sheet against the accused for the offences under S.395 and S.397, IPC and S.3/25 of the Arms Act. On committal the trial Court framed charge against the accused persons for the offences under S.395 and S.397, IPC and 3/25 Arms Act. In support of its case the prosecution examined as many as 16 witnesses and also exhibited 28 documents. The accused - appellants were examined under S.313, Cr PC and they denied the prosecution case. After hearing the arguments the trial Court convicted and sentenced the accused - appellants as mentioned above.
(3.) MR . Shiv Lal Sharma, Mr. Nawab Ali Rathore, for Mr. N. A. Naqvi for the accused - appellants Ramzan and Liyakat Ali and Mr. Ali Mohd. Khan, learned counsel appearing for the accused appellant Jamil Khan, argued that the prosecution failed to establish its case beyond the reasonable doubt. There are several infirmities and contradictions in the statements of witnesses, and therefore no reliance can be placed on the testimony of these witnesses. The conviction based on such evidence is not sustainable and the same is liable to be quashed and set aside. The sentence awarded by the trial Court is excessive, keeping in view the facts and circumstances of the case and manner in which the incident is alleged to have taken place. There is no justification to award excessive sentence. The statements of accused appellants under S.313, CrPC. are not recorded in accordance with the provisions of law, as all incriminating circumstances were not put to appellants and sufficient opportunity of defence is not afforded to appellants. No reliance can be placed on the statement of complainant because he has changed his version at different places. The incident had not taken place as stated by the complainant. The prosecution witnesses have made improvements in their statements and therefore no reliance can be placed on their testimony. The appellants were not previously known to the complainant and others. However, test identification parade is not conducted. Therefore, the accused cannot be connected with the crime and the learned trial Court committed an illegality while recording the conviction. There was a dispute in between the complainant and Mehboob regarding some money transaction and when Mehboob went to the complainant and demanded money, some dispute started and stones were pelted amongst them. The complainant caught Razaq who was an associate of Mehboob and later on concocted the false story. In these circumstances, the learned counsel argued that the accused appellants may be acquitted and at least their sentence should be reduced.;