2009 (3 )  SCR 348         

AMIN KHAN v.

STATE OF RAJASTHAN AND ORS. (Criminal Appeal No. 385 of 2009)

FEBRUARY 25, 2009 [DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY, JJ.]

The Judgment of the Court was delivered by

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  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 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.