IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE JURISDICTION

CRIMINAL  APPEAL  NO. 482    OF 2009

[Arising out of SLP(Crl.) No. 1591/2008]

MOHAMED ALI ... APPELLANT(S)

:VERSUS:

THE STATE REPRESENTED BY THE INSPECTOR  OF POLICE  

... RESPONDENT(S)

O R D E R

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:

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“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.   

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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.